Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

SOUTHERN RHODESIA (MR. JOHN WORRALL)

Mr. Roebuck: Mr. Roebuck (by Private Notice) asked the Secretary of State for Foreign and Commonwealth Affairs whether he will make a statement about the proposed expulsion of Mr. John Worrall from Southern Rhodesia.

The Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Maurice Foley): I do not know why Mr. Worrall is being expelled, and I understand he has been given no reasons himself. Her Majesty's Government believe in the freedom of the Press and deplore the restrictions that the illegal régime have, at various times, imposed on it.

Mr. Roebuck: Is my hon. Friend aware that Mr. Worrall is the twenty-first Pressmen to have been declared a prohibited immigrant since the illegal act of independence? Is he further aware that Mr. Worrall's only crime is that he has told the truth to the readers of The Guardian? In view of this further outrage against liberal and civilised conscience, will the Government now call off the "Fearless" proposals?

Mr. Foley: I am aware that this is the twenty-first instance of a Pressman being expelled without any reason being given. No reason has been given, so that I cannot question whether or not he has been expelled for telling the truth.
What I can say is that the incident, in view of the fact that Mr. Worrall has been resident there for a number of years and is in high standing amongst journalists there, is a deplorable one. However, this of itself is no ground for us to withdraw the "Fearless" proposals. It is yet another indication that Mr. Smith may be being pushed by some of his own wild men.

Mr. Winnick: Is it not disgraceful that correspondents like Mr. Worrall should

be treated in such a way and expelled by the illegal régime? Does not my hon. Friend agree that it is a very good illustration of the methods of the police State politicians who continue to rule Rhodesia? Why should we continue with the "Fearless" offer?

Mr. Foley: I agree with many of my hon. Friend's comments. However, the "Fearless" proposals remain on the table. It is up to the other side to take the initiative. They are there as our offer to them. We are aware of realities in Rhodesia. Nevertheless, we feel that we have to make this effort.

Mr. Hooley: Since Mr. Worrall has himself expressed support for the "Fearless" proposals, is this not an indication that the Smith régime are not taking them seriously? Ought Her Majesty's Government not now to seek to destroy Smith rather than treat with him?

Mr. Winnick: Hear, hear. The sooner, the better.

Mr. Foley: I would not like to conjecture an answer on whether Mr. Worrall was expelled because he supported the "Fearless" proposals. As for the Smith régime, we have made our proposals, and it is up to them now to accept them or come back to us. We are waiting to hear from them.

Dame Joan Vickers: Do the Government propose making any protest? After all, they have still the power to do that. Do they intend protesting to the Smith régime?

Mr. Foley: In this and many other instances we have publicly expressed our disapproval. I am sure that this of itself is sufficient to indicate to Mr. Smith and his illegal régime how we abhor the methods by which they are proceeding in Rhodesia.

BILL PRESENTED

RENT ACT 1968 (AMENDMENT)

Bill to legalise the requirement of a premium or a loan as a condition of the grant, renewal, continuance or assignment of a protected tenancy granted for twenty-one years or more; and for matters incidental thereto, presented by Mr. Graham Page; read the First time; to be read a Second time upon Friday next and to be printed. [Bill 73.]

Orders of the Day — MATRIMONIAL PROPERTY BILL

Order for Second Reading read.

11.9 a.m.

Mr. E. S. Bishop: I beg to move, That the Bill be now read a Second time.
Today, we have the opportunity to take a significant step forward in social reform. It is probably not the first time that an hon. Member representing Newark has been identified with this campaign. A predecessor of mine as the hon. Member for Newark was William Gladstone who, as we know, was identified with many social causes and, in his time, made some contribution to them. The opportunity comes to us all today to push forward with a campaign which most people in the country accept as being essential and justified.
My opening words in moving the Second Reading of the Bill are rather an undramatic way to begin the debate. I should have liked to begin with some of the romantic feeling of the wedding-day when, up and down the country, brides go to the village church and walk to the altar. I should have liked to recall some of the crescendo of the fanfare of trumpets on that blissful occasion as the bride walks up the aisle to her bridegroom waiting at the altar ready to make a solemn promise.
This is well recalled, as we may remember, by Sir Jocelyn Simon, the President of the Probate, Divorce and Admiralty Division of the High Court, in what is now his famous lecture to the Holdsworth Club in Birmingham in 1964. Sir Jocelyn—who I feel sure will be interested in the Bill, as many others are—reminds us of the tenderness of the bridegroom as he slips the ring on the bride's finger and says, among other things:
With this ring … with my body … and with all my worldly goods I thee endow.
Thus, he makes a declaration which some may say has no legal value, but which, nevertheless, is in keeping with

the mediaeval custom of endowing the bride with one's goods. There is the intention, the promise freely and happily given, on that occasion.
From 1928 onwards we have had the revised version of the Established Church, where one promises freely to share all one's wordly goods. I believe that at that blissful moment the bride and groom together are prepared to accept the establishment of the principle right at the start of the marriage of sharing, which is likely to strengthen the marriage union by the laying down of guide lines. These are particularly necessary when the going gets tough. These promises, made in all sincerity, but with very little legal force, have been made over the centuries by bridegrooms, whether from stately homes or from the more humble crofter's cottage.
It is remarkable that, although the Established Church, with the consent of Parliament, has carried on these traditions, which are universally accepted in every way, the courts have for some time asked about their legal reality and what it means when matters come for their decision.
Concerning the matrimonial home and the contribution that the wife makes to it, it means that she has a real interest in it, but, in fact, she has very few legal rights.
We have had a succession of legislation over the last 90 years—in particular, the Married Women's Property Act, 1882, which brought some relief to the wife. That Act, and others, was put on the Statute Book because of pressure which has been exerted at times up and down the country. In legislation since—the Matrimonial Causes Act, the Married Women's Property Act, 1964, and I could quote others—we are indebted to people here and in the other place who have made contributions.
I recall the work of Baroness Summerskill in this great campaign. She made the point, in a recent speech in the other place, that the legislation that she was putting forward was piecemeal, but was necessary towards the more comprehensive legislation which was to follow.
In his Holdsworth lecture, to which I have referred, Sir Jocelyn Simon makes


the point that we have a patchwork of matrimonial legislation. He also said:
The truth is that the courts have been responding, as best they can, to a clamant need of married women, but to deal with the problem fully, logically and without serious inconvenience to third parties, legislation is required …
The Royal Commission on Marriage and Divorce had been considering the matter from 1951 to 1955, and in 1956 it reported and made many recommendations about the basis of divorce and all the matters and problems attendant to the marital situation. The Report recommended, among other things, the need for security in the matrimonial home, the need for powers to restrain from disposal of matrimonial property, and it made proposals for the equitable division of family property.
The Commission called for amendment to the Married Women's Property Act, 1882 and referred to matters, with which we are not particularly dealing today, but which are, nevertheless, important to the position of a wife, regarding insurance, pensions and other social benefits. I hope that there may be other ways in which these urgent changes can be brought about. Some changes have been made, but we all know that much more remains to be done. There are major defects in our matrimonial property laws which should be amended at the earliest opportunity.
The Matrimonial Property Act, 1882, refers to the property of the wife, but it does not help a woman who, on marriage, has no property and does not work outside the home. At the time of that Act—which was a progressive Act for that period—very few women worked outside the home. Today about eight million women work outside the home in industry and commerce and in many other ways.
It is difficult to prove, where a wife does not work outside the home but works in the house caring for the family and doing the many jobs which a wife and mother must do, what contribution she has made and what repayment she can get when the marriage goes on the rocks. Many wives earn money outside to contribute towards holidays, clothing and school affairs. This is not easy to prove. So the wife, whether she works in the home or outside, is at a great disadvantage. Many will say, I believe

rightly, that the woman who works in the home should have some recognition for the part that she plays in the family's affairs.
The rule of separate property purchased in the husband's name meant that it was his. During the campaign in support of the Bill I have had many letters from wives all over the country complaining about the property situation. I have had one from a wife who was taking in lodgers, with her husband's approval. The husband and wife were working together to buy property and hoped eventually to settle down in a "pub" or restaurant, or something of that kind. But, before that happened, the husband had his eyes in other directions and he decided to leave his wife and go off with another woman. The result was that the second wife got the benefit from the property which the first wife had helped to earn and to maintain.
I have had letters from farmers' wives, who make a geat contribution to the farm because they work in the dairy, do bookkeeping, and the many other jobs which a farmer's wife has to do. I have had letters from wives who, with their husbands, over the years have built up a farm and were looking towards easier times ahead. But the husband has his eyes on greener pastures. He sees that the grass on the other side of the fence is a bit greener than the grass on his side. When his eyes fall on some other attraction there is the possibility that all the resources to which the first wife has contributed get transferred to the second wife, and so on. If the second wife dies before the first wife, complications arise about the ownership of the property.
Over the years conditions have changed in many homes up and down the country. Life, in some ways, is a lot easier, with washing machines, refrigerators and other modern aids. But the status of women has not changed in our society. They are still tied down by the traditions and customs of mediaeval times. There is urgent need for legislation, long overdue, to establish a situation where women not only have a social status in their homes, but an economic status as well.
The woman is entitled only to bed and board; women are regarded as chattels in the home and economically and legally as second-rate citizens. Last year was Human Rights Year, when the spotlight


of the nation was on the need to give equity and justice to everyone, but women have not had a fair share in that effort. The campaign which has been started must continue so that the House and the country are aware of the need for action.
There are many other instances I could quote of the need for a change in the legislation. Young children in a home prevent a married woman going out to earn and have all the protection of the 1882 Act. Such a woman has no legal rights to income and is dependent on her husband. On divorce, the wife is ever more conscious of dependence with maintenance orders which can be enforced only if the ex-husband can pay. The problem is that so many husbands either have not the means to maintain a wife and family, or, more often, do not intend to do so and the wife is left high and dry. We look for social legislation very' soon to sort out this problem.
My postbag, and I gather, that of many hon. Members, reveals the extent of bitterness, especially when marriages come to an end. I am amazed, as others must be, at what a woman will endure to keep her family going. I have had letters from wives who have been living in what they call "hell" for 37 years, but who are loath to leave the family because of the social consequences entailed for all concerned. The women of the country, in supporting this Bill wholeheartedly, as they do, are not fighting for personal possessions, personal gains or interests. They are fighting for justice which has been denied them over the centuries and for the opportunities which we can give them by giving this Bill a Second Reading today.

Mr. Ronald Bell: I hesitated to interrupt the hon. Member earlier because I thought that he might be coming to this point. He has spoken of a number of cases in which a wife has contributed to building up a property. He instanced the case of a farm where perhaps she had contributed. Would he apply the reasoning of his speech and the provisions of his Bill to the opposite class of case, where there is the obvious difficulty when the wife has made no contribution and has been a bad wife, but, in spite of that, her husband has managed to build up the

value of the farm? As I understand the Bill, she would still get a half of the property.

Mr. Speaker: Order. This is more like a speech than an intervention.

Mr. Bell: I merely wanted to put the point of the obvious opposite case, Mr. Speaker.

Mr. Bishop: I recognise the point made by the hon. and learned Member. It is true that up to now I have spoken with some emphasis—and rightly so—of the disadvantage in the legislation at present to the wife, but the legislation I am seeking to introduce is not biased in favour of one partner or the other, as I shall explain. It is fifty-fifty, and that is equality. I am glad that the hon. and learned Member for Buckinghamshire (Mr. Ronald Bell) has mentioned this point. The wife is economically the weaker partner. This is why this legislation is particularly needed.
I have had instances, as I am sure other hon. Members have had, in which a husband has been at a disadvantage. There is the husband who comes home every week and gives his pay packet, unopened, to his wife, who banks the money in her own name. Then the situation becomes intolerable when they part and she is left with a nest-egg which she has not helped to produce. But, goodness knows, wives have a lot of leeway to make up.
As we all know, this legislation is long overdue. It is 13 years since the Royal Commission on Marriage and Divorce reported and made recommendations for action in a number of fields, not only on aspects of divorce but in dealing with the bitter aftermath when marriage ends. Now that another Divorce Reform Bill is before Parliament, which, also, is long overdue, we need to take a realistic look at the situation. There are millions of people, particularly wives, who fear what the situation will mean for them, because in many cases they will be automatically divorced, as they have been separated for so many years.

Mr. Leo Abse: My hon. Friend is making a very good case for his Bill, but he must not overstate it. No one will be automatically divorced after five years' separation under the Divorce Reform Bill.

Mr. Bishop: I am grateful for my hon. Friend's intervention, because I should not like it to be thought that marriages will be automatically ended. What I meant—I am sure that he will appreciate this—is that many will be in a situation in which a decree will be almost automatic when they have gone through all the formalities. There is a fear in many homes about the consequences of this situation. The Divorce Reform Bill lays down financial safeguards so far as possible to protect these wives. I am sure that my hon. Friend the Member for Pontypool (Mr. Abse) will have a chance to clarify the situation as he sees it. I hope that he will do so if he manages to catch Mr. Speakers eye.
The Bill with which we are now concerned has had an enormous amount of publicity. The response in the country shows quite clearly that people regard this matter as very urgent indeed. The Government have facilitated the Second Reading of the Divorce Reform Bill through the House. I voted for it, not because I felt that it had in it all that I want because I believe that marriage is a lifelong union between one man and one woman, but we all know as social workers and in other ways how things can go wrong and that legislation is necessary to bring the law up to date.
If we had not given that Bill a Second Reading at that time the present proposed legislation would not come before the House for a long time. Equally, we want legislation such as that proposed in this Bill to provide a complementary Measure.

Mr. W. A. Wilkins: The other Bill is not through yet.

Mr. Bishop: My hon. Friend says that that Bill is not through yet, but there is a possibility that it will be on the Statute Book in the near future. My colleagues and I feel strongly that we should have these two Bills going through at the same time, probably in different ways. That requires a Second Reading to be given to my Bill today.
As we know, when marriage is going well it is an honourable state, but when marriage comes to an end, unless there are agreed principles on the division of the estate, bitterness can be added to the sense of injustice which arises on

those occasions. A marriage, instead of being marital becomes martial and matrimony changes to acrimony. Because we feel strongly that legislation is required to protect people against social injustice, we are promoting this Bill today.
One of the problems we face, and which has been indicated clearly in the last few days, is that of a private Member trying to tackle this kind of legislation. We all know that there is only a short time in which an hon. Member can make up his mind about the kind of Bill he will introduce and a very short time in which to get legal advice on the Bill's drafting and to establish the kind of principles he wishes to establish. In days such as this he is in great difficulty in getting the Second Reading for which he wishes, no matter how keen hon. Members may be and how insistent are the demands in the country. I welcome the letter which appears in The Times today from the the right hon. and learned Member for Chertsey (Sir L. Heald), suggesting that legislation of this kind should be tackled largely by the Government. But if we are to wait for Governments to introduce legislation without pressure, we shall have to wait a long time. The Government of the day, no matter which Government it may be, have the facilities, the experience and the drafting skill to produce Bills and leave them, possibly, to a free vote of the House so that hon. Members may have legislation of the kind they want.
The task of a private Member in introducing legislation which everyone feels is urgent and necessary is none the less very great. We have had the same problems as all private Members have. If one goes too far, in the present context, into all aspects of family property law, there are allegations that one is trying to do too much and it ought to be left to others.
If the House takes the other course, as I am trying to do, of introducing limited legislation, which is necessary in the light of other legislation going through, one can be accused, as we may be today, of not covering all the aspects which should be covered. Either way, one faces a grave difficulty. In my view, the right hon. and learned Member for Chertsev made a very good point in his


letter and expressed an opinion which I am sure, is echoed by many right hon. and hon. Members in the Chamber today.
One of the major difficulties confronting the private Member is that of obtaining legal help in the drafting of his Bill. There have been allegations that this Bill is badly crafted, that it does not do what we want it to do, and so on. There has hardly been any legislation before the House in many years when the same allegations have not been made. This is the dilemma. I believe that the House will today have to decide whether it wants to establish the principle and then let other questions be worked out in Committee.
In my first job, having decided that, in the light of other legislation, we needed safeguards in regard to matrimonial property, I was greatly helped by members of Justice, the British section of the International Commission of Jurists, which includes experts on family law, people who have worked in this field in the courts and in the lecture rooms for many years. I stress now, to correct a wrong impression in some newspapers, that Justice has not officially supported my Bill. In fact, Justice has had a family law committee dealing with this side of the problem for a long time, and I am indebted to various members of that committee for the work which they did.
I pay tribute to them. From among them, I mention Dr. Olive Stone, Reader in Law, Mr. Joseph Jackson, Q.C., Mr. Joseph Harper, Lecturer in Law, and many others whose experience has been placed at our disposal. I appreciate their work in drafting the Bill and the many hours which we spent together in considering how much we could hope to achieve. Anyone wishing to be fair in the cause which he is promoting is in duty bound to seek the best advice which can be available to him.
A private Member introducing a Bill will be in grave danger if he tries to explore the subject too widely, trying to deal with questions with which he may not be competent to deal. The Bill is relatively short, with only 10 Clauses. The most important point to be stressed is that it gives the courts legislation laving down certain principles which will help them in the future. It gives the courts the principles to which they will need to refer

on the break-up of marriage. It is based on the principle of equity, recognising that marriage is an economic partnership as well as a social and spiritual partnership.
Under the Bill, all receipts over expenditure during the marriage are regarded as matrimonial property to be held jointly by husband and wife. During normal marriages, there will be no difficulty in that situation. Husband and wife will be able to control and manage their own affairs separately if they wish. There will be no inconvenience caused.
The Bill continues the accepted rule, which has been long established in the country and elsewhere, that property owned separately before marriage remains the individual property of the spouses afterwards. We say, also, that property the result of gift, bequest, devise or descent shall be retained separately, and this also is in keeping with established procedure. Any increase in the value of the joint or separate property, however, shall be shared equally.
There has been some criticism based on the huge problems which, it is alleged, the Bill would create We are told that we shall need more judges, more courts and more valuers to assess the property. Most people will realise, however, that in mosts cases, however, if not in all, the parties coming to the court for a decree will have sorted these matters out already by agreement. I am sure that that can be done. In cases where there is more property than usual, the parties will probably have more expert advice, accountants, secretaries and the like.
In the average home, in what one might call—if I may so define it—the working-class home in which the house is the principal item of property, with perhaps, a car, the furniture and a few other things, the task will not be great. The problem can be overcome quite simply so that, when the decree is sought, evidence of value and of the division after agreement can be accepted by the court.
If such agreement has not been reached by the time the court hears the petition, that will be the moment when the court needs principles to apply, and it is those principles which we are trying to lay down by the Bill. In the vast majority of cases, however, there will be no disagreement, and the courts will not


be forced to sit longer than they do now. I understand that the average undefended divorce case nowadays takes no longer than 12 minutes. No one can say that that is really burdensome.
In many homes, it is not difficult for people to establish who owns what. We hear a good deal about demarcation disputes nowadays in another context. Here it is not a matter of who does what, but of who has what. In the average home, the wife and husband know exactly who gave them this and that, and, at the end of the day, if the marriage is in question, there need be no great problem involved in deciding the ownership of property, whether individual or matrimonial. We all know that the property of many people is not great, despite these affluent times. In 80 per cent. of cases coming before the courts, the income of the husband is probably less than £16 a week, and this is divulged when maintenance orders are sought.
By other provisions in the Bill, we recognise the need for separate property before marriage to be separately owned after marriage. We recognise the need for an equitable division of jointly owned matrimonial property. We recognise the need for there to be agreement on gifts and set-offs in cases of break-up and dispute. We recognise the right of the parties to agree to contract out of the terms of the Bill if they so wish; there may be occasions of that kind. We recognise also that there may be situations in which equity would be unfair, so that the court must have discretion in order to set it aside in the interests of justice for all concerned.
These Clauses are based on the experience of many other countries which have separate or community property systems in marriage. I believe the advice we have been given to be sound. We have sought to take the best from all these systems.

Mr. David Weitzman: My hon. Friend has told us of the advice which he has received. Has any practising member of the Bar or any practising jurist approved of the drafting of his Bill?

Mr. Bishop: Yes. My advisers included several practising members of the

Bar, whom I need not mention here. They have been experienced in day-today practice at the Bar. One of the problems we had in drafting the Bill was that they were often in the courts at the time when I wanted to consult them.
I am convinced that my sponsors and I have a Bill which, despite all the allegations and criticisms, is based on principles that we need to lay down and establish. It deals with the urgent problems attendant on the break-up of marriage, whilst leaving some of the other issues to the long-term deliberations of the Law Commission, which I recognise had a great deal of work to do.
Its third annual report makes it clear that the job is very big, and we pay tribute to its work over the years. But there is need for urgent reform. Our awaiting some of its recommendations does not prevent the House from giving the Bill a Second Reading today, so that it can go to Committee and be improved and amended if need be. My colleagues and I will show the greatest degree of co-operation if that happens.

Mr. William Baxter: Could my hon. Friend give us a valid reason why Scotland is excluded from the provisions of the Bill? All the things that he has said appertaining to marriage, and so on, are as applicable north of the Border as they are south of the Border. Would he be prepared to accept an Amendment, if the Bill gets its Second Reading today, that Scotland should be included in its provisions?

Mr. Bishop: I should be a very brave man if I gave a detailed reply on that. I have a job on hand to convince people south of the Border of some of the details of the Bill. I am sure that there is no dispute, north or south of the Border, about its principles. My hon. Friend is capable of looking after Scotland in his usual way, and I shall care for the problems of England and Wales in the meantime.

Mr. Emrys Hughes: Will my hon. Friend say that, if the Bill goes to Committee, he will keep an open mind if a Clause is proposed to make it apply to Scotland?

Mr. Bishop: I shall certainly keep an open mind. My mind is very open on


the question of Amendments, because I believe that the important thing is to give the Bill a Second Reading so that we can have an opportunity to improve it if need be.
There have been allegations that the Bill is unworkable and not what we intend it to be. Is it suggested that all the combined resources of the Government's legal departments and hon. Members with experience in these matters on both sides cannot be used to give justice to people generally? Are we saying that, if we have made a point and established a principle and recognised injustice in this age when we can put a man into space, we cannot give women their rightful place in the sun? There is no reason why we should not.
Today, the eyes of the men and women of the country, particularly the women, are on us in this Chamber. I believe that they are behind the promoters of the Bill. The work we have done and the strength of our case has been recognised by the events of the past few days. We have a great opportunity to give the Bill a Second Reading and then sort out some of the difficulties which arise on all Bills, Government or Private Members'. There is no case for saying that this is too big a job. If justice is required, is needed now and is seen to be urgent, the House must tell the country, "Here is a challenge and an opportunity that we shall take". It would be disgraceful if the House did not give the Bill a Second Reading.
Now is the opportunity. Campaigns that have been necessary over the years to get legislation on to the Statute Book, bit by bit. There is no reason why we should not give the Bill its Second Reading today and say to the country, "We have seen the point which has been made. We recognise our responsibilities as a Government and a House of Commons, and we want to harness all the resources of this Chamber and the Government to get the kind of Bill we want".
I believe that we are right to give the Divorce Reform Bill a chance to be discussed at this time because, if the opportunity had been lost recently, it would have been lost for many years. If we recognise that this Bill is complementary to the Divorce Reform Bill—and, I believe, is necessary whether or not we have the Divorce Bill—we have an urgent

duty to make sure that we not only lay down the conditions under which marriages may be terminated, but the conditions under which we can deal with the attendant problems when divorce or separation take place.
Here is the chance. I hope that the House will see the need to tell the country clearly today that we recognise the strength of our case and have confidence in the ability of the lawyers and all the others on both sides of the House to make the Bill the kind of Measure we want. If we do not do that today, we shall not take the opportunities which are ours.

Mr. Speaker: Order. The House would want me to try to secure a balanced debate. It will help the Chair if those hon. Members who wish to catch my eye, and have not yet indicated to me their attitude to the Bill, would do so.

11.46 a.m.

Mr. Ronald Bell: I am happy to have this opportunity to follow the hon. Member for Newark (Mr. Bishop). What I have to say will be critical of his proposals, and I intervened in his speech to give him an opportunity to deal with some of the criticisms I wish to make.
One of the difficulties the hon. Member will encounter is that he plainly believes, and said, that there was no dispute about the principles of the Bill. Because he believed that, he made no attempt to argue a case for it. He merely dealt with the difficulties which might arise in its operation and tried to ward off mechanical criticism, which he no doubt expected, because he had heard them. But he did not put forward a case for the Bill. The words "We all know that … We all think that …" recurred many times in his speech.
But there is a case against his Bill as a Bill, against its purposes and its main intention. I suppose that he would call his main purpose "equity". Nobody is against that. But he was perhaps using "equity" in a slightly question-begging way for "equality". He should bear in mind that the position is not that, if the Bill or something like it does not go through, there is no provision in the law of England for a wife who quarrels with, and parts from, her husband. It is already the position that the property of


each spouse acquired before marriage remains the property of that spouse. Nothing is needed to bring that about. It has been so for a very long time.
It is the law, and has been for a very long time, that property given to each during the marriage from outside, or acquired by each separately during the marriage, remains the separate property of that spouse. Nothing needs to be done about that. It is the law, and has been for a very long time, that if husband and wife part the husband, because he is usually the earning partner, must make adequate provision for the maintenance of the wife and children by a system of payments or lump-sum provision, or both, and both are in the unfettered discretion of the court. That is present law.
The only purpose and effect of the Bill, therefore, is a very narrow and particular one. It is to require the court, absolutely and in all cases, to divide all capital acquired during a marriage—in fact, in operation it would be by the husband—equally on the break up of the marriage between the two spouses, and it makes this a compulsory element, as it were, in any financial provisions made by the court upon the break up of the marriage.

Mr. Alexander W. Lyon: Would not the hon. and learned Gentleman go a little further and agree that the present law already allows for community of property if the parties, during the course of the marriage, have made this their intention, and goes even further in that, if there is a doubt about the intentions of the parties, on the whole the court will lean towards community of property?

Mr. Bell: The hon. Gentleman has a point there. There is also the principle of survivorship in the case of a joint tenancy in equity. There are many rules of law, but in fact the hon. Gentleman is really agreeing with my broad argument that the present arrangements in the law are so extraordinarily comprehensive and flexible that one must ask why the hon. Member for Newark, whose motives I do not question, seeks to import a rigid rule and clamp it upon the courts, which at present have an unfettered discretion and can do all this and more if they want to.

That is why I interrupted the hon. Gentleman. I felt that this was a main point which I wanted him to meet. Unfortunately, he did not do so. Perhaps he misunderstood by thinking that I was referring to reciprocity. In fact, his Bill operates upon either spouse, but the point I was on was that Clause 6 is quite inadequate as a mitigation of the automatic application of the provisions of this Bill.

Mr. Bishop: The hon. and learned Gentleman will recognise that a Bill has to lay down principles which are needed and, secondly, one has to appreciate that cases vary enormously and that therefore the courts must be given discretion to go away from the principle of equity where that is the case. The point the hon. Gentleman is making, about legislation already on the Statute Book to cover some of the points I have made, is hardly applicable when the Married Women's Property Act, 1882, only covers the property of women where they can prove ownership or ownership is derived from their income. Where women work in the home and cannot prove the money they have contributed they have few legal rights at all.

Mr. Speaker: Order. Interventions, even from sponsors of Bills, should be brief.

Mr. Bell: The hon. Gentleman does not meet the point I am making. We are dealing here with the break up of marriage. We should be dealing with that anyway, for obviously it is extraordinarily unwise to intervene in a happy and successful marriage by trying to sort out rights of one spouse as against the other. That would be the surest way to wreck a marriage. We are, therefore, surely thinking of the break up of marriage, where the spouses have separated and where the State has to step in. Of course, sometimes the parties arrange these matters among themselves, and so much the better if they do. But where the State has to impose a provision, the position is as I have stated it and is not really very much to do with the Married Women's Property Act, 1882, except at one remove.
The position is that all the separately acquired property of either spouse before or during marriage remains the property of that spouse and that, as


regards any accumulation the husband has been able to make during the marriage, it is fully at the disposal of the court in the arrangements the court makes for maintenance of wife and children, both by periodic payments and by capital allocation.
One of the provisions of the Bill is to enforce upon the courts a prima facie rule of division of the property, and the only qualification is in Clause 6. The courts have to make sense of an Act and they will have to make sense of Clause 6. Knowing the present position, on which this Measure would be superimposed, they would say, "This is not intended to give us general discretion because we had that before. It must be to impose upon us a 50 per cent. rule, with permission to depart from it in particular respects."
I think that must be for rather special reasons. And, therefore, my main point is perfectly valid—that this Bill would be a kind of half-nelson put on the courts. It would be a most tedious, tiresome and expensive half-nelson at that. In present law, it is entirely open to the court to examine the value of the property if there is disagreement and an element of conflict. In the end, the court can decide the value of the assets in a particular case and make an order of settlement as it thinks fit—for example, if the assets total roughly £30,000, it may allocate £10,000 to the wife. That is a relatively inexpensive process compared with what is proposed by the Bill.
The trouble with such a Bill, when one tries to make the whole thing automatic and comprehensive, is that one has to include things like Clause 4. I say to the hon. Gentleman, with the greatest respect, that it is no good whatever saying about things like Clause 4, "There is a Committee stage and the human race has managed to send men round the moon." Both propositions are true, but they have not very much to do with how one tackles a problem like Clause 4.
I shall not say much about Clause 5, because I am not sure that I understand it. I will leave it to some of my hon. and learned Friends. But Clause 4 really says, when it comes to this great dividing up process, that in respect of any gifts which

… either spouse makes in any one year to any person or persons, body or bodies … exceeding the monthly income of the donor spouse …
—when the final checking up comes, perhaps years later—half the value of such a gift must be deducted from his share. But that might be 20 years later.
Husbands and wives do not know that they are going to quarrel years later. They will be leading happy, normal married lives together. The husband may have a successful business. He may have substantial assets and be interested in some cause or person and give a lot of money to that cause or person. The Bill says, however, that while he can do that he must go to his wife and get her consent. This is not the way marriages work. One month's income in the case of a person with considerable resources but not large earnings might be rather small. Is the husband to clear everything with his wife first? People really do not live like that.
This is a ridiculous proposal. Yet, if there is not a proposal like it in the Bill, the provisions can be evaded. That, of course, is why it is in. The hon. Member for Newark knows how vulnerable the Bill is and he and his advisers realise that without some kind of Clause 4, the Bill would be a nonsense—and that is why a Bill of this kind is a nonsense.
I want to leave one more thought in his mind. If there is one matter on which most of us are united, particularly nowadays, it is the desirability of sustaining the institution of marriage. The more tiresome the consequences we hang about the institution of marriage the greater the danger in which we put it. Marriage is in enough danger already today from many different quarters. There is a temptation in the House, especially on Fridays, to indulge in somewhat doctrinnaire refinements of the relationship which is voluntarily entered into by one man and one woman for life, and indeed to make the man feel that when he has entered marriage his ears are pinned against the wall and that Parliament will give him hell. This is a great temptation to enter into irregular unions.
I know that history is a rather dangerous source to quote, but this very thing happened in Rome when the consequences of confarreatio became so


burdensome that eventually it came to be replaced by usus, as the hon. Gentleman knows. There is a not insubstantial or remote danger that by Friday legislation we, too, shall strike a serious blow at the institution of marriage.
For that reason, I ask the hon. Member for Newark, whose motives I fully appreciate, to give serious thought to whether this is a wise proposal. I think it is not. I do not think that any proposal of this character is needed in the present state of the law, although some changes may be needed, and its ultimate effect could be to do the kind of general damage to society which I have indicated.

12.2 p.m.

Mr. Leo Abse: The hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell) was right to emphasise that there is greater flexibility within the law than my hon. Friend the Member for Newark (Mr. Bishop) has attributed to it. Nevertheless, despite the obvious and overwhelming deficiencies of the drafting of the Bill, if the principle which lies behind became law, it would be as dramatic a contribution to the emancipation of women as the pill itself.
Certainly, it is an extraordinarily ambitious Bill. As my hon. Friend has said, it is sought substantially to translate from fiction into fact the vow made by every husband that he will endow his wife with, or at least share with her, his worldly goods. To attempt to translate that principle into fact is an enormous challenge to every husband. Fundamentally, the response to such a challenge depends on whether the husband believes that a marriage exists upon a basis of a genuine partnership with his wife, or whether he believes that it relies upon her economic thraldom. Clearly, every husband who is a tyrant in his home and is abusing his wife's dependency would fear a Bill embodying this principle.
But how ambitious the Bill is becomes even clearer when we inquire whether the principle that all property, savings and goods acquired after marriage, whether by the husband or wife, should belong to both of them is likely to be acceptable, emotionally acceptable, to the partners of a marriage. I suspect, that it will be only those husbands who are secure enough in their love, the love

which they give and the love which they receive, who will easily accept this principle. Therefore, when the hon. and learned Member for Buckinghamshire, South hints at the possibility that the Bill may have some destructive as well as constructive features within the institution of marriage, his point, if not totally valid, is certainly well made.
But every magistrate, and, I am sure, my hon. Friend the Member for Newark in particular, knows every day within our matrimonial courts how far marital realities are removed from the ideal behind the Bill. There are millions of women who do not know how much their husbands are earning. The pay packets of a large section, particularly of working people, are opened before home is reached. It is sad but true that many a militant trade unionist, when he enters his home, takes off his principles at the same time as he takes off his coat.
Nor is this a monopoly of the man on the factory floor, as those whose professional fate brings them into contact with people who are wealthier and who have marital trouble will know. Many a progressive and sophisticated managing director prepared to preach and to practise participatory techniques in industrial relations regresses to a primitive in his home relations.
In our party we know that my hon. Friend the Member for Newark is not given to extravagances; nor is he normally given to wild views. But the Bill he is introducing has a revolutionary aim. It calls for a revolutionary change in the patterns of human conduct on the part of millions of our fellow citizens. I do not chide him for that, because, as he well knows, I am no new supporter of the principle of the Bill, but it is well that the House should understand the ambitions of the Bill, for I am convinced that it is from such commendable but such overweening ambitions that the present difficulties stem.
Even the distinguished academic lawyers who have doubtless considerably aided my hon. Friend, as has been said, have committed what must be regarded as enormous gaffes; and I am sure that they were not malevolently conceived. As it stands, although, of course, it is not so intended, the Bill places a premium on infidelity, the faithless wife, the incorrigible scold, the impatient spouse


who at any time in the marriage, or when a nullity, divorce or judicial separation petition, is presented to the court, will call upon the court to divide the matrimonial property into two.
But what is there for the more normal wife, the good wife content in her marriage, the wife receiving her housekeeping and other allowances and not bothering her head to enter into marriage contracts or make applications to courts? What happens to such a woman when she becomes a widow? For the widow the Bill gives no new right. The divorcee will be able to take half the marriage property, but the widow will have nothing. The fact Is that the sponsors, wrestling as I know them to be with good intent with the complex property problems of estranged couples, have forgotten that, very fortunately, most marriages end with death and not with divorce.
It is not for me further to adumbrate the many flaws of the Bill, because that, alas, can be done by those who are opposed to the principles of the Bill, as I am not, and there are plenty of those. I hope that I shall not be provoked into saying anything about many obvious defects, except to say that it is highly fallacious to suggest that the Bill gives greater powers to protect the interests of divorced wives than the wide discretionary powers which are vested in the courts by the Divorce Law Reform Bill in so far as enormous powers are given to the judge before he can in particular circumstances grant a decree absolute.
The Bill does not add to those powers. Indeed, it is arguable—in view of the rigid principles to which the hon. and learned Member for Buckinghamshire, South referred—that its insistence on the half-principle could mean that the Bill as drafted would inhibit the judge in a divorce case from giving more than a half, which he could do under the Divorce Reform Bill. I appreciate that there is a Clause in the Measure from which it is being rather desperately attempted to suggest that this effect would not prevail. I have said that this is arguable, but in my view—it is supported by what the Lord Chancellor said in the report of his statement in The Times today, in which he made it clear that this Bill could not add to or alter the situation

as drawn in the Divorce Reform Bill—it is more than arguable.
For a long time many of us have known the difficulties of drafting Measures of this kind, first, in practical terms and, secondly, in terms which the community may regard as equitable. For this reason we were relieved to learn that the Law Commissioners had begun to tackle this gargantuan task. There are usually well-founded suspicions in the House that commissions and similar bodies are appointed as substitutes for action. Such manoeuvres are well-worn Government devices. But it would be an imprudent hon. Member who Would accuse the Law Commissioners of being a party to such delays. The House must be careful that it does not lower the high morale of the Law Commissioners by our failure to assimilate their work.
This week their report and draft Bill has been published on an important aspect of the landlord and tenant law relating to business tenancies. I wonder how long it will be before we legislate on this issue? A Bill has been completed by the Law Commissioners relating to civil liability for animal trespass, a matter of importance to many constituencies, including mine. In view of the careful and patient thought which the Law Commissioners have given to this ancient and fractious matter, I trust that dust will not be allowed to gather on the Bill.
The Divorce Reform Bill itself was completely drafted 18 months ago, after the Commissioners' discussions. It is the House which lags behind the Law Commissioners and not the Commissioners behind the House. It is only right, when we are discussing the work of the Commissioners, as we are bound to do in a debate of this kind, that we should humbly acknowledge these facts to Sir Leslie Scarman and his distinguished team.
The Law Commissioners and ourselves work differently. It is nearly three years since the Commissioners decided that they would embark on a study of financial relief in matrimonial proceedings and a subject which could not be divided from it; a study of the law of family property. The Commissioners planned their work so that they could give priority to two matters, and they decided some years ago that, as a matter of priority—since the two matters could not


be disengaged; the question of financial relief and that of family property—the question of financial relief would receive their first priority.
We in this House, on the other hand, do not plan our work. We depend—I take the point of the right hon. and learned Member for Chertsey (Sir L. Heald)—on our lunatic ballot system forming a happy conjunction with a brave and committed hon. Member like the sponsor of this Measure, and we leave it at that. The notorious contretemps now reported in the Press, now happily cleared up, came into existence around the Bill largely because of our haphazard system, and I fear that we are in danger of throwing into disarray the work which is being conducted in depth by the Law Commissioners.
I do not doubt that the Solicitor-General will tell us of that work. Equally, I suspect that he will tell us how inadequate this Measure is. He does not need to persuade me of the deficiencies of the Bill, even if I do not quite agree with some distinguished lawyers who are sympathetic to the Bill but who have said to me that the only thing right in the drafting of the Measure is the Long Title. But the Solicitor-General will most certainly not persuade me that nothing can be done until the Law Commissioners have completed the pioneering job of a full study of family property, for that would mean that nothing would be done in the lifetime of this Parliament.
I have intervened in the debate for one reason only: because I believe that if the sponsors of the Bill will accept this—and if the Solicitor-General and the Government will have the good sense to proffer it—it is possible that, out of this debate, we could have next Session a well-constructed Bill that would put us substantially on the road to the objective which the sponsors and, I believe, the House, want. It is possible and practicable to have half a loaf in this Parliament. It is clearly not possible to have the whole loaf.
I have given notice to the Solicitor-General that I would raise today certain issues, so that my remarks from now on will come as no surprise to him. The Law Commissioners divided their work on family law into two parts; financial

relief and property. As they freely acknowledged, however, they could not keep a dividing line between the two. They have, therefore—they have freely acknowledged this—often overstepped this dividing line on important matters in considering the questions of family relief. This part of their work is substantially advanced.
In common with others interested in this subject, and with perhaps a little expertise, I was invited to comment on a most sophisticated working paper of the Law Commissioners as long ago as April, 1967. I put this question, therefore, to the Solicitor General. Is it not correct that it is possible and practicable to have in the hands of the Government, in sufficient time before next Session begins, the full proposals relating to financial relief together with a draft Bill from the Law Commissioners? Secondly, is it not correct that it is presently anticipated that such proposals should include new powers to divide up family property?
There are several matters vitally affecting the division of family property, which could be completed in good time for legislative action next Session. There is the important fact that it would be possible to have a recommendation before the House widening the powers to order secured maintenance. The lawyers will understand what I mean and I regret that for non-lawyers I am unable to translate the matter more simply. It means that it would be easier to make awards which last for the life of the wife and not merely for joint lives. It would mean that they could have secured maintenance so that what happens in so many cases now—that the wife has little or nothing when the husband dies—could be prevented. It will be seen immediately that this is something which would go not a small way towards enabling the court to divide up family property in a way that it cannot effectively do now.
Secondly, it would be possible, within such a Bill, to generalise the power to order settlements of property. This is a matter on which the work of the Law Commissioners must be far advanced. The court could order the husband to settle property for the benefit of the wife and children, and it would also enable the court to have wider powers to vary


Settlements. It would be an important step forward to the objective which the sponsors have in mind. Thirdly, the work of the Law Commissioners has substantially been done in extending the courts' powers, which are too inhibited to award lump sums, which would also bring us materially nearer the objectives of the Bill.
It would also be possible, as a result of the work already done or almost completed by the Law Commissioners to extend the claims of children in whose favour orders can be made so that the present anomalies which touch upon illegitimate and adopted children of marriages which have broken down could be swept away.
Those are four points which I am sure could be brought forward by way of recommendations and approved by the House in this Parliament next Session. The Solicitor-General has a great opportunity. If, contrary to his gentle temperament, he is tempted to savage the Bill, which with his proficiency he could undoubtedly do, and if he does no more, he will leave many hon. Members totally frustrated and many women's organisations bewildered that we have a Government who are sympathetic to the principle but unhelpful in its implementation.
If today, in sufficiently strong terms, the Solicitor-General can give an undertaking that the path will be cleared for the implementation next Session of the recommendations of the Law Commission on financial relief, including the four points affecting property which I have categorised, enabling the court to divide up the family property, it will be demonstrated to all that the Government are ready, in deeds and not words, to implement next Session proposals which undoubtedly will afford considerably greater protection to the wife and children of a broken marriage.
Since, if the Divorce Reform Bill, sponsored by my hon. Friend the Member for Rhondda, West (Mr. Alec Jones), becomes law, it is intended that there should be a time lag between its passing and implementation, if the Solicitor-General gave us a real and not a dusty reply today, greater financial protection would be afforded to the people about whom we are all concerned, I know that it is the wish of the right hon. and learned

Member for Chertsey, in particular, that simultaneously perhaps with the implementation of the Divorce Law Reform Bill, this greater financial protection may come about.
The Solicitor-General has the opportunity today, if he chooses to take it, to inaugurate a new era in the law relating to domestic relations and family property. In view of the contretemps which there has been, I hope most sincerely that he will not miss the opportunity. If he takes it in clear enough terms, I hope that the sponsors of the Bill will not spurn his offer, for their commendable efforts will then have brought about a real advance in which they will have every right to take pride. The House waits expectantly for the Solicitor-General's reply.

Several Hon. Members: Several Hon. Members rose—

Mr. Speaker: Order. I remind the House that many hon. Members wish to speak.

12.24 p.m.

Mrs. Jill Knight: The sponsor of the Bill, the hon. Member for Newark (Mr. Bishop), said that what we are arguing about, among above all other things, is the principle of this matter. I do not apologise for bringing the House back to the principle rather than roaming into fields, which no doubt are fertile fields, concerning the Clauses.
The traditions and customs of this country certainly militate against women. So do the law and the attitude of most men. As if that were not enough, so does Nature. I always feel that "Mother Nature" is a misnomer. Nature should rightly be classified as male, because Nature's rules consistently militate against the female of the species. I could give many examples, but I should be promptly ruled out of order. The case that I propose to make is for married women with children. Nature specifically militates against them very harshly.
What happens in most marriages? In perhaps as many as 70 per cent. of them, after due time, the children arrive. The husband, usually a young man, is building up a career, possibly undergoing training, and is establishing his life's work, whereas his wife is at home looking after the children, which in most cases is thought to be a job which could be


done by anybody and is, perhaps, rather degrading and not of very great worth. She cannot earn money outside the home because she is pinned down by the need to look after her children. Employers are understandably reluctant to employ her because they know perfectly well that she is not nearly such a good bet in their shop, office or factory, as a man would be because, if she has children and they become ill, she is away. The school holidays always create difficulties. Consequently, she can never build up assets from employment in the way a man can.
If, when the children are older, she goes out to work, even full-time, she has an extremely difficult job, because in most cases she returns home towards the end of the day and has to face almost another day's work in the house cleaning and cooking and doing other jobs which otherwise she would have done during the day.
Even if she does all that, it is not clear that the money which she earns is hers or can be used by her because, in many cases, such a woman puts the money into the family coffers. It is used for holidays or for something in the home which, after it has been paid for, is not set aside to be recognised as her possession. But it certainly goes toward building up the assets of the marriage. Even if she is not able to earn at all, can it really be denied—and it astonishes me that so many people apparently deny it—that her contribution towards building up the assets of the marriage is not negligible? When she is keeping the home going and looking after the children, how can it be said that what she is doing should not be recognised as a positive contribution to the assets of the marriage? Could a man have built up his assets so well if his wife did not look after the home?
It is not until a man is left with young children to look after that he begins to realise the great benefit of his wife to him in economic terms. It is not until he has to get a housekeeper or to make arrangements for his children or house to be looked after that it is recognised that the job which his wife was doing was of considerable value. Anyone who serves on a children's committee knows that caring for children is a highly qualified and very expensive job. There cannot be just one "Mum" who will do

everything. When children are "in care", there must be two people looking after them because time off has to be allowed, and because of holidays there will probably be a third person in the background. There must be somebody else to do the cleaning, the cooking, and the mending of the clothes.
It is recognised that those things are necessary if there is not a mother to do them. If there is a mother, she is expected to do all these jobs and to keep the home going, to be there 24 hours a day, always on call. For some reason which I cannot understand, however, it is thought to be perfectly fair to regard the contribution which she makes as totally negligible if the marriage breaks down.
Of course, the woman's contribution should be legally recognised. Hon. Members can talk about the law as it is, but the fact is that the law regards the woman merely as a dependant. The law downgrades a woman. Whatever benefits she may receive from the bounty or the hand of her ex-husband, if she is divorced that is a matter for the courts. She may be lucky, she may not. The Bill says that she has a right to a certain recognition of the assets of the marriage.
Somebody suggested that if one of the partners to the marriage won £25,000 on the pools it would be grossly unfair for half of that money to go if the marriage broke up. We were told that a worthless wife might go off with somebody else and could then claim half the assets of the marriage. My hon. and learned Friend the Member for Buckinghamshire, South (Mr. Ronald Bell) said that there could be bad wives who had not helped their husbands to build up their assets, but are cases of that kind in the majority?
Do we read in the papers that 70 or 80 per cent. of people win large amounts on the pools? Is that supposition to stop us from passing a Bill such as this? Is it seriously suggested that the majority of wives are bad and do not help their husbands or that the majority of women go off with somebody else? I cannot see that because there could be cases like that we should not proceed with the Bill. Bad husbands can go off with other women and leave their wives in desperate situations, simply because the law does not recognise the right of a wife to the assets built up during marriage.


Elsewhere, the point was made in favour of the Bill that the longer a marriage lasts, the greater the matrimonial property will probably be and fortune-hunters will not benefit. I recognise that fortune-hunters of one sex may not benefit, but a case could be made for saying that fortune hunters of the other sex might decide that a marriage was well worth breaking up. My point is that all those cases which could be made against the Bill are only the exceptional cases and that the run-of-the-mill pattern makes the case that a wife should have the right to share in the assets.
My hon. and learned Friend the Member for Buckinghamshire, South said that property which is given or acquired remains in the ownership of the person to whom it was given. Of course it does. Who is arguing about that? We are talking not about property which has been given to a person, but about assets built up in a marriage during the life of that marriage.
My hon. and learned Friend said that under the existing law a divorced husband must make adequate provision for his divorced wife. If that is supposed to be a reason why we should proceed no further with the Bill, I am astonished. It is only common fairness that a man should make adequate provision. Simply to say that the law does this meagre service now is not a reason why the Bill should be thought to be wrong.

Sir Douglas Glover: Surely, my hon. Friend is slightly wrong. In the Bill, we are not talking about the husband or wife having to give up half his or her permanent income. We are talking about having to give up their property, which might be £250. It will not make all that difference to the wife.

Mrs. Knight: My hon. Friend may be correct, but I think that it will make a great deal of difference to the wife in many ways. It is true that we are talking not about income but about assets, which are an altogether different matter. Possession of property is possible under existing law if the parties agree, but my hon. and learned Friend the Member for Buckinghamshire, South destroyed that point when he said that partners do not sit down years before a marriage breaks up and decide solemnly that the community of the property will be carried through.

Mr. Alexander W. Lyon: The hon. Lady misunderstands the point and the legal position. It is not that the parties sit down and consciously make a decision. If, by their conduct and attitude throughout the marriage, they have pooled their resources and there is a common pool from which the expenditure has been made, the law imputes a desire to have equality in the ownership of property which is bought out of the common pool.

Mrs. Knight: If the hon. Member regards that as fair, I cannot understand why he does not support the Bill. He cannot pretend that the present situation is so satisfactory that there is no need for the Bill.

Mr. R. T. Paget: I think that the hon. Lady has not quite understood what the Bill does when she says that it provides for a share of the assets in the ordinary marriage. It provides for a share of the assets only in such cases as the spouse applies to the court to divide them. Let us hope that that will not be the average marriage.

Mrs. Knight: I think we are not talking about the average marriage, we are talking about the average divorce. Certainly, in the average marriage the position would be quite different, but the situation is such that in the average divorce the assets of the marriage are not at present divisible in the way that the Bill foresees. When the Bill was described as putting a half-nelson on the law, I felt that that might be an apposite comment, because in many cases the existing law certainly turns a blind eye to women's rights.
The Bill does not weaken marriage. It was never intended to do so. It was intended to do exactly the reverse and to strengthen it. This it will certainly do. How could it be said that even a business partnership could be weakened if both partners knew their rights and where they stood and had a fair share? How could it be argued that that would weaken a partnership? The Bill will strengthen partnerships and certainly not weaken them, because it makes the woman's position plain.
Legal quibbles on Clause 4 or anything else should not prevent progress


with the Bill. I acknowledge, as the hon. Member for Newark (Mr. Bishop) has done, that Amendments are needed and that in Committee there has still to be a great deal of talking, we hope, about the Bill. Certainly, the hon. Member has said that he has an open mind. He has acknowledged that parts of the Bill are obviously not right as they stand.
We are, however, talking about the principle and saying that the position should be made clear in principle at the beginning of a marriage. As the hon. Member for Newark said, when people are married in church they speak about their worldly goods being endowed. More and more marriage services nowadays use the words "all my worldly goods I with thee share". Whichever it is, we then proceed to do absolutely nothing of the kind. Not even the Bill goes as far as to put that into practice, because there will be no conveyance of property by virtue of the wedding ceremony.
All in all, this is a Bill which really must be ventilated further. I was a little worried when the hon. Member for Pontypool (Mr. Abse), I thought for one awful moment, was laying himself open to the extreme danger of being burned in effigy by the W.I.s, the Townswomen's Guild, and other people, because, having been such a keen supporter of divorce law reform, he appeared to go even further against the interests of the women of the country by being in opposition to the Bill. However, then he changed his tune somewhat, and I think it is true to say that the principle of the Bill finds favour with him. I think that it will find favour with many hon. Members. If there are defects in the Bill, as indeed, there are, still I beg hon. Members to give the Bill a chance in Committee and to show by doing so that they have the very true interests of the women of the country at heart.

12.41 p.m.

The Solicitor-General (Sir Arthur Irvine): It may be convenient to the House if I intervene in the debate at this stage. For reasons which I shall develop in a moment I shall advise the House that the Bill should not receive a Second Reading.
However, I should not like my hon. Friend the Member for Newark (Mr. Bishop) and his supporters to think that

our attitude is one of hostility to their objective. Far from it. Many people, and members of the Government are among them, would look sympathetically at a change whereby an element of community of property would be introduced into our law.
The hon. Lady the Member for Birmingham, Edgbaston (Mr. Knight) said, I thought, that the view which I have just expressed is widespread, but it would be a fundamental change and it would have repercussions not only on divorce and on separation and on maintenance, but also on every aspect of property law and on every family in the country. The Government's view is that this Bill goes nowhere near solving even a fraction of the problems which would arise and, indeed, that it is defective to the extent that it would be unworkable.
It is not part of my purpose—in the phrase which was used by my hon. Friend the Member for Pontypool (Mr. Abse)—to savage the Bill. That is not my intention. Of course, those of us who are critical of the Bill and believe that it does not really usefully achieve the objectives which my hon. Friend the sponsor of the Bill has in mind are under the clear duty to the House, I think it will be thought, to set out the grounds for this belief perfectly frankly and, indeed, fully. My hon. Friend, I would think, is entitled to that kind of treatment of his Bill, and it is in that spirit, which I hope that I have made sufficiently clear, that I bring forward these criticisms.
My hon. Friend, to whose ability and zeal in this matter I pay tribute, has explained that his intention in the Bill is to create an element of community of property between spouses. The spouses' property would be divided into separate property, on the one hand, and matrimonial property, on the other; and the court is to be given extensive powers to apportion matrimonial property between the spouses on the presentation of a petition of divorce or nullity or at any time on the application of either spouse.
There is a good deal to be said for the argument that, in many families, the wife gets a bad deal because her contribution to the marriage consists in looking after the home and the children, while the husband, often the only earner


in the household, has the opportunity to accumulate property. My hon. Friend has argued that the proposals contained in his Bill will go far towards remedying defects affecting financial provisions contained in the Divorce Reform Bill which is at present awaiting consideration in Standing Committee.
However, in my view, these intentions of his cannot be realised by the Bill in its existing form, and its provisions will not, in my opinion, be of assistance as a complement to the Divorce Reform Bill. The Bill—I feel bound to say this, and with great respect to him—is an unsatisfactory vehicle for an attempt to introduce wide-ranging and fundamental reforms in a complicated and controversial fie d. The introduction of any form of community of property into our law must require very careful consideration and wide consultation.
There are three fundamental points of principle on which the Bill is defective, and which, in my view, are fatal to it. The first is that it does not really introduce community of property at all. This is a point which my hon. and learned Friend the Member for Northampton (Mr. Paget) made, and I think that he is absolutely right. It does not introduce community of property at all but brings the distinction between separate and matrimonial property into being only where there is an application to court, or divorce proceedings.
The situation between the spouses remains uncertain, and the repercussions on the rights of third parties, the law of succession, Estate Duty, on capital gains, and on mortgages, to mention only a few factors, are considerable. Married men—I do not think that what I am saying is putting it too high; I hope it is not—married men and women would, in many instances, not know from one time to another what they did or did not own because both husband and wife at any time might have half of what they own taken away from them on principles which are not laid down.

Mr. Percy Grieve: Is it not also the case that this would be true of married women, and that any married woman with any separate property of her own would also not know where she stood at any stage of the marriage?

The Solicitor-General: The hon. and learned Gentleman is perfectly right about that, as I understand it.
The second serious defect in the Bill is that the court is given unfettered powers in respect of matrimonial property and can depart, if it thinks fit, from the principles which are set out in Clause 1, as well as disregard any agreements between the spouses to contract out. Such a provision, I suggest to the House, can only place the whole law of property in the melting pot. It cannot be said that it would be right to introduce such an element of uncertainty without safeguards which would enable the ordinary person to know where he stood.
The third fundamental defect, as I see it—it is, perhaps, consequential upon the second one—is that an impossible burden would be placed upon the judiciary, which would have to determine the history of every item of property acquired since the marriage, including its fluctuations in value. The courts are given by the Bill what amounts to carte blanche to divide matrimonial property between husband and wife. The House will observe that, under the Bill, either spouse can apply at any time to the court for this purpose, and if there are divorce proceedings the court is bound to embark on this task.
May I remind the House that currently there are over 40,000 divorce petitions, so even if one disregards applications where there is no question of divorce, courts will have to inquire into the division of matrimonial property in at least 40,000 cases a year. Under the Bill this will not be a simple inquiry. The value of every item of property acquired during the marriage, its appreciation or depreciation, the disposal of any money which has been raised by selling it will all have to be gone into.
It is a mistake to regard the difficulty involved in that situation as necessarily diminished because the amount of property in a particular instance is small; that does not follow. This will be a matter of the greatest importance where the property concerned is small in amount; there would need to be a property inquest of an elaborate kind.
The Bill does not impose any duty on either spouse to tell the other spouse


what his or her assets are. There is no power to set aside assignments of assets which have been made to defeat the provisions of the Bill. The spouses may contract out of the division of property provided they pay two separate solicitors, but the court can disregard this agreement in whole or in part.
I suggest to the House that these are serious faults, and they cover a wide scope. I would add that there are no transitional provisions in the Bill. If the Bill receives a Second Reading today, its wide terms and lack of specific safeguards will be open in Committee to any kind of amendment, and the consideration of each amendment may occupy so much parliamentary time that the efforts of bodies and Departments at present considering these matters in depth might be seriously prejudiced. I ask the House to take account of this.
My hon. Friend has contended that his Bill is a necessary complement to the Divorce Reform Bill. This contention is unsound, and in some circumstances the changes proposed may leave the wife divorced against her will in a worse, and not a better, financial position. There is considerable concern on both sides of the House amongst supporters of the Divorce Reform Bill and others about the financial position of the wife divorced against her will after perhaps five years of living apart. I ask the House to consider what is the effect of my hon. Friend's Bill on that crucial point, which is a point at which the Divorce Reform Bill and my hon. Friend's Bill converge to their mutual significance.
In a case where a man has left his wife and, after five years, is divorced without having sufficient income to provide reasonable maintenance for her and support for his second family, the court would be required under the Bill to divide both the husband's and the wife's matrimonial property between them and, prima facie, it would be divided equally. In effect, the husband would not only be able to divorce her, but also take from her up to half of any capital appreciation which may have come her way.
In this type of case it is unlikely that the husband, while supporting a second family, will have acquired property on his account which could offset this potential loss to the wife. Moreover, the wife is

very likely to have been left in the matrimonial home and this, or any increase in its value, will therefore become equally divisible.
To avoid this absurd and unjust result—and I think hon. Members from both sides of the House would think that these words were not too harsh a comment—it would be necessary to invoke Clause 6. It is true that Clause 6 is there to provide some safeguard in such a case, but the invoking of Clause 6 is immediately open to the objections that have been voiced against the Divorce Reform Bill. If there are insufficient means the court cannot get blood out of a stone.
The wife may well be worse off under the Bill because the Bill must apply Clause 1, and this can be avoided only if the wife can show that an equal division of the matrimonial property would be unreasonable, or if the court can find good reason for taking a different course. In my view, this provision will add to the difficulty which the wife will experience in obtaining adequate financial provision, and I would submit that reliance on Clause 6 does not recompense for this.
It is the view of the Government that the problems connected with adequate financial provision must be subject to examination in great detail before legislation can be promoted which can ensure that justice is done in the division of matrimonial property. It is for this reason that the Law Commission is at present considering the whole question of financial provision and altering the law relating to matrimonial property. It would be wrong for the study of these problems, by a body which Parliament has set up to examine the law and recommend reforms of it, to be frustrated or disadvantaged in any way by premature and insufficiently thought-out legislation which can only add to the present uncertainty and may lead to additional expense and difficulties for the spouses.
I want to say a word about the Law Commission, and I do so the more willingly because of the observations that fell from my hon. Friend the Member for Pontypool. The Law Commission is at present working on the question of financial provision, that is, the matter of financial rights and obligations arising out


of marriage and its termination. I can report to the House that its study of financial provision is well advanced, and it is hoped that its report, with draft Clauses, will be in the hands of the Government this summer, and probably by the end of July.
The Commission is still engaged on the lengthy task of preparing a first working paper on the wider subject of matrimonial property. It will be readily recognised by the House that the treatment of financial provision can be sensibly divided from the wider subject of matrimonial property, and that it is understandable and natural that the report on financial provision should be available well before the report on matrimonial property.
It is hoped that the working paper on matrimonial property, with tentative recommendations, will be widely circulated to interested bodies representing both lawyers and laymen by the end of this year. The Commission will then receive and consider representations on the working paper. When I refer to preparing a first working paper, it has to be recognised that that is not a report. It is not even a draft report. The point that has been reached is that of preparing a first working paper.
It is important to emphasise that the consideration which the Law Commission will give to it necessarily involves a study of the profound consequences which any major reform will have on related areas of the law. I would refer, here, to paragraph 53 of the third annual Report of the Law Commission, in which the difficulties inherent in any new approach to these problems are explained clearly. It says:
We are also proceeding with our examination of the law of family property including the possibility of introducing into our law a form of community of matrimonial property.
My hon. Friend will observe that. As he said, the Commission has that matter well in mind.
There has been a good deal of public interest recently in this aspect of our work and we are aware of pressure to hasten our study of it. But as we said in our last Annual Report it will necessarily be a lengthy task. At present English law does not treat the property of a family as a separate subject governed by a distinct and consistent set of principles. Any major reform would necessarily have repercussions on many other areas of the law, such as bankruptcy, succession on death and conveyancing.

It would be quite wrong for me to predict what the recommendations of the Commission are likely to be. We know the matters which it is considering. They are well adumbrated in the passage to which I have just referred and, as I say, I cannot make predictions. But I can emphasise the importance of the fact that the proposals on financial provision will be published by the summer, and it is my view that it is in this area rather than in that of property that reform is urgently needed to ensure adequate maintenance for wives and children.
It has been pointed out that any reform of the law of matrimonial property will have less immediate impact on problems of maintenance, many divorced people having few assets which could be divided. I agree with that contention, and I submit that priority should be given to financial provision. That is the order of treatment of the matters being adopted by the Law Commission.
On the other hand, I think that the Law Commission is sympathetic to some of the aims of the promoters of the Bill in relation to matrimonial property. In the passage that I have just read from its third annual Report, the Commission has already announced that its deliberations will include detailed and thorough investigation of the possibility of introducing in our law, which in this sphere is clearly in need of reform, a form of community of property and an examination of the reforms undertaken in other countries which have systems of matrimonial property law of this kind.
In passing, I might perhaps say that many hon. Members on both sides of the House will share with me the sense that the relations between this House and the Law Commission form a most interesting and important object for study. These relations are developing favourably. I know that the Law Commission desires to sustain and develop its role of being ready in an advisory capacity to assist hon. Members on legal matters. But it would be a pity if that activity were on such a scale that it impeded the long-term work of preparing working papers and reports in which these problems are dealt with in depth. To remedy the defects in the Bill to which I have referred would involve the risk of such impediment.


There is a considerable sense of a common objective in our deliberations today. I think that there is a mutual understanding of the difficulties confronting the House in its approach to the problem. My considered view is that the defects in my hon. Friend's Bill are such that it would be detrimental to the objectives at which he is aiming if his Bill got a Second Reading. But that does not derogate from my respect for the effort that he has made.

1.6 p.m.

Sir Lionel Heald: I think that it is my duty, as one of the hon. and learned Gentlemen's predecessors, to say that I agree entirely with the Solicitor-General's view about the legal aspects of this matter. Indeed, there is almost unanimous agreement about them, and, for that reason, I would not like to try to add anything.
The hon. Member for Newark (Mr. Bishop) introduced the Bill very clearly and with great moderation. He and his fellow sponsors deserve a great deal of sympathy, because there is no doubt that there is considerable anxiety amongst the women of this country about the consequences of another Bill, the Divorce Reform Bill, which it would not be right for me to discuss in detail today.
It is clear that there is some ground, to put it mildly, for that anxiety. Indeed, it was practically admitted today, with complete frankness, by the hon. Member for Pontypool (Mr. Abse), with whom I have had strong differences in the past and probably shall have more before long, but who is always extremely clear and courteous in his arguments.
In those circumstances, those hon. Members who have brought forward the Bill have felt it necessary to take action to compel the Government to pay attention to this problem. They have succeeded in doing so. It would be unwise for me to go into that any deeper, but we have had some idea of what has been happening in the last few days. Therefore, I feel that we should not only sympathise with but be grateful to the hon. Gentleman and his hon. Friends for what they have done.
For reasons which the Solicitor-General has given already, I do not feel prepared to support the Bill's Second

Reading. I believe that it would involve a Committee in an enormous amount of argument and discussion. It might be doubtful whether it would ever reach a conclusion and, what is worse, it might give the Government an excuse for saying that they need not do anything now since the Bill is proceeding In much the same way, I was concerned when some people interested in divorce reform, on hearing that this Matrimonial Causes Bill was coming along, decided that they need not worry and that everything was all right. I hope that what has been said this morning will make it clear to them that it is not.
This Bill is not the way to deal with the problem, and I hope that the hon. Gentleman and his friends will appreciate that, assuming that they are satisfied with whatever undertaking they get from the Government. It is for them to say. I appreciate the position in which the Solicitor-General finds himself, but I think that the sponsor of the Bill is entitled to demand a very firm assurance from the Government before deciding whether or not to abandon his Bill. As I have said, that is a matter entirely for him. However, I do not feel that I ought to support the Bill for the reason that the Solicitor-General has given. At the same time, I would not be prepared to vote against it, because, in a Private Member's Bill, it is a matter for those concerned to decide whether they will be able to achieve their objective by means of Government action.
I am grateful to hon. Members who have been kind enough to mention my name. I simply wish to emphasise the point that the Government have gone too far in leaving these great moral and social questions to Private Members' Bills. Those of us who have had anything to do with Private Members' Bills know that I do not in the least denigrate them. I was fortunate in being able to put one on the Statute Book which involved the amendment or repeal of 47 Statutes. That could not have been done without the assistance of the then Attorney-General, Sir Hartley Shawcross, who put the services of the Parliamentary draftsmen at our disposal.
We had another in which the present Financial Secretary to the Treasury


managed to amend the law of defamation. At that time I was Attorney-General, but I was glad to be able to help him. We achieved quite a lot, although now everyone is saying that they will have another go at that subject, which is probably a good thing.
But we must be satisfied that the Government are serious in their realisation that these matters cannot be dealt with, as was said by The Times the other day, behind a mask of neutrality. They must tell us what their policy is. Surely on these great social and national questions the Government ought to have a policy and they ought to recommend it to the House and give us an opportunity of deciding upon it. So I hope that good may come of this today.

Mr. Abse: The right hon. and learned Gentleman will not forget that historically, although any question of divorce has been a matter for Private Members' Bills so far, matters of relief have always been Government Bills. So, if the right hon. and learned Gentleman is pressing the matter, as I hope that he is, that the Government should take action, judging by what the Solicitor-General has said it should be possible for the Government, in accordance with tradition, to bring forward a Bill on matrimonial relief next Session.

Sir L. Heald: I am obliged to the hon. Gentleman. I am delighted to find myself in complete agreement with him, although for a very short time.

1.13 p.m.

Mr. David Weitzman: I am sure that the whole House would like to pay tribute to my hon. Friend the Member for Newark (Mr. Bishop) for his public spirit in promoting the Bill. My sympathies are entirely with him. Indeed, before I read through the provisions of the Bill, I expressed support for the idea behind it. After all, married women are in a difficult position from an economic point of view. If a married woman works and contributes to the upkeep of the home, her contribution may be of little avail if and, when the home breaks up. If she is a housewife, looking after the home, she obviously makes a valuable contribution which can hardly be assessed in practical terms.

It therefore seemed to me—and I still hold that view—that something should be done to remedy the position and to make material provision for her in case of difficulties arising. But, frankly, having studied the Bill carefully, I do not think that it deals with the problem adequately or at all.
May I, first, although this means some repetition, make some criticisms of the Bill. It provides for an application to be made at any time by either spouse for a division of what is called "matrimonial property". What does "at any time" mean? I hope that the promoter of the Bill will listen to this point. It means that if either spouse, in a fit of temper, after some angry words, desires to make such an application, he or she may do so. That, in my view, is to invite trouble in the matrimonial home. Indeed, the threat to do so may cause trouble between the parties.
The Bill then seeks to enact that
… whenever a petition for nullity of marriage, divorce or judicial separation is presented, the court shall 
make an order for the division of the matrimonial property. Note the words
when a petition is presented.
Not when a decree is made, but upon the presentation of the petition. Suppose a decree is not granted. Does this mean that the court must adjudicate on the question of division of the matrimonial property? True enough, the court may deem such division unreasonable, but obviously complications will follow.
Then the Bill deals with what is matrimonial property. First,
all property, or the replacement thereof, beneficially owned by either spouse at the time of marriage
except for an accretion in value during the marriage, is not matrimonial property. Secondly,
separate property … acquired by either spouse during the … marriage
is not matrimonial property.
Curiously enough, in regard to that separate property, even if there is an accretion, there is no provision that the accretion shall be matrimonial property. Suppose a husband acquires property at the beginning of a marriage in his own name. Unless the wife can show that she has contributed to the purchase of that property, she has no right to share in it.


We have the provision in Clause 6, to which reference has been made, giving the court the right to depart from the principles of Clause 1 if it thinks it unreasonable and refuses a division. Where are there any guiding lines on which the court is to act on what is reasonable or unreasonable? Is it to be left to the whim of the judge, one judge as against another? Is it intended that the court should inquire whether a wife has been a good wife keeping up the home, or partly good, or bad, or partly bad, neglecting the home entirely or a very little, or whether the spouse making the application has been guilty of cruelty or adultery and should be punished by the terms of any order which is made?
If the court could do it, it would obviously mean a long hearing, with detailed investigation, and, as the Solicitor-General pointed out, we have not enough courts, enough judges and, with a large number of petitions on the file, enough time to deal with the matter. But in my view, this, in the terms of Clause 6 itself, is placing a completely impossible task on the courts.
Clause 8 provides that the spouse may contract out of the obligation to divide by a written agreement. True, the spouse is to be advised separately by a solicitor, but that is of little effect, because the court can disregard such an agreement.
The Bill, as drafted, seems to me to be unworkable. With the best will in the world, to effect the principle, with which I agree, I do not see how it can possibly be amended. Indeed, I feel, in cases of bankruptcy in particular, that it might lead to complications of a very serious kind.
The promoter of the Bill is obviously under no illusion that, under our present law, there are considerable safeguards for married women. The Matrimonial Homes Act, 1967, is a useful protection against eviction and it provides for the creation of a statutory tenancy for the married woman.
As the promoter of the Bill pointed out, from as long ago as 1882, the Married Women's Property Act has provided machinery under which a married woman can claim her right to property where she has contributed to its acquisition. The Inheritance (Family Provi- 
sions) Act, 1938, contains provisions which enable a spouse to apply to the court for reasonable provision where the other spouse dies leaving a will making no such provision or not ample provision.
As the law now stands on nullity, divorce and judicial separation, the court will deal with questions of settlement and maintenance, and these provisions are amplified now by the new Divorce Bill. I do not pretend that the present machinery is adequate. I recognise that financial difficulties might still arise under the provisions of the new Divorce Reform Bill. I hope that the position of the divorced woman will be helped by new National Insurance regulations; but there is still the problem.
If I believed that this Bill would solve, or help to solve that problem and was workable or could be made workable by amendment in Committee, I would welcome it. I am afraid, however, that the matter is so complicated and touches so many interests that the most careful consideration and most careful drafting is required to cover all areas affected.
I agree with the right hon. and learned Member for Chertsey (Sir L. Heald) that this is too formidable a task to be tackled in a Private Member's Bill. I take the view that opportunities for private Members to introduce Bills ought to be allowed quite freely and not limited in any way, but we must recognise that sometimes a Private Member's Bill covers so complicated an area that it cannot deal adequately with the subject.
I welcome the fact that the Law Commission is now engaged in dealing with this matter. I appreciate that this is an urgent problem and that delay is irksome. Nevertheless, in this case it is better to wait and have legislation prepared by a thoroughly competent body. I say this to my hon. Friend: at any rate he has the satisfaction that by bringing in his Bill he has provided an opportunity for discussion and helped to focus attention on the urgency of the matter.

1.22 p.m.

Dame Joan Vickers: As one of the sponsors of the Bill, I congratulate the hon. Member for Newark (Mr. Bishop) on having the courage to bring in what has been described as "a bit of real social revolution." It is a pity that this has to be


done on a Friday, when there are not many hon. Members present, but it is necessary for us as private Members to make our principles completely clear.
I was a little worried when the Solicitor-General spoke about the length of time which might elapse before action could be taken. There was a Law Commissions' draft Report in 1966 and a second one in 1967, but neither of these covered property. They dealt with maintenance, not assets, and that is what we are thinking about today. It will be, as I see it, two years before any action is taken.
I want to know how other countries have managed, quite successfully, to produce law on these lines. Recently I was in Iceland. There a woman has a contract on marriage. When there are marital difficulties the parties are asked to try to draw up a private contract concerning their present property. If they cannot do so, they go to the court, which makes a settlement approximately on a fifty-fifty basis, and I understand that there is no difficulty concerning this practice. Other countries, too, do not have difficulties. I believe that the whole of Eastern Europe manages such a system as suggested in the Bill, as do six States of the U.S.A., and Germany, Holland and Scandinavia.
I understood the Solicitor-General to refer to 40,000 undefended cases. I think he exaggerated when he spoke of them going through at the rate of one every 12 minutes. They might take only that time in the court, but the parties would have to go into chambers to discuss problems about income. The Graham Hall Report was specific in saying how little is known about the various aspects of the means in these cases.
I understand that under Section 17 of the Married Women's Property Act, 1882, it is possible, as was agreed in the case of Nash v. Nash in 1965, for settlements to be negotiated before going to court and to obtain approval of the court later. In this way the time can be cut down. Section 17 does not give powers for women to have their rights, as the matter is left so much to the discretion of the court. We suggest a fifty-fifty division of the assets.
My hon. and learned Friend the Member for Oldham, West (Mr. Bruce

Campbell) practises in the divorce courts, but I want to know how many lawyer hon. Members who have spoken in this debate have practical experience and have practised in the divorce courts. Not being a lawyer I find it difficult to argue against them, but perhaps they do not know much more about this subject than I do if they do not practise in those courts.
If, as there appear to be, there are many difficulties concerning this Bill, I hope that this does not mean that hon. Members will have to wait for two years before legislation can be enacted.
Some years ago I brought in a Bill referring to maintenance orders. It went into Committee and the proceedings were not very satisfactory—I could not get a quorum because 6 Members of Parliament sat in the corridor—but then the Government took it over. Surely it is the duty of the Government to take this Bill over, to make it work, because we need action to be taken at once.
I draw the attention of the Government to the fact that this is a sexless Bill. We have been told that it is all in favour of women, but it is impartial in its treatment of the parties to a marriage. Hon. Members who are afraid that the Bill would improve only the position of women need not worry.
At the end of the war, West Germany scrapped its previous legislation on this family law and then brought in legislation which treated men and women on an equal basis. It is for this that we are striving. We remember the sad fate of the Domicile Bill, and that makes us suspicious about being put off again today.
The 1882 Act did not tamper with the common law but since a man acquired nearly all his wife's property on marriage it said that he must maintain her so long as she did not commit adultery. That is not sufficient. That may have been a good Act at the time, but we want to put women in a better situation than that of being just chattels. As from 1950, the courts have tended to consider a wife's proof that her money or savings had gone to pay this or that and she may be entitled to a half share.
I have an example of a case in which a wife in a naval town continued to work throughout her marriage. Her husband, in the Royal Navy, had to make an


allotment on marriage. The woman bought a house in their joint names. When her husband came back he decided that he did not want to live with his wife. She, with all the work she had put in, was found entitled to only two-thirds of the property, because her husband is deemed to have supported her through giving her the naval allowance.

Mr. Alexander W. Lyon: Does the hon. Member realise that under this Bill the wife would be entitled to only 50 per cent.?

Dame Joan Vickers: She will be entitled to something, but she has to go to the court to find out what it is. In the case to which I referred, she had two-thirds, but one cannot be certain that she will have two-thirds in every case. She is not entitled to it as of right. That is the point. We want the wife to be entitled to something as of right. It might be decided that she is not entitled to anything. I could tell the hon. Gentleman of other cases which illustrate the point. What can a woman do now in such circumstances? She can—and it has been done—put the house in the joint names of herself and her father and then, if necessary, in the case of matrimonial trouble, the husband can be excluded.
A great deal of the furniture in the house is usually bought nowadays on hire purchase, particularly among the lower income groups, the people of whom I am thinking most because they are the ones who have the major difficulties. The hire-purchase payments are often made by the wife out of money which she earns or out of her housekeeping allowance, but she cannot sign the hire-purchase agreement, she has no entitlement to the furniture unless it can be proved in some way to be hers. She has no entitlement even though she paid the hire-purchase money throughout the agreement period. I understand that it is even possible for a husband to demand all the clothing and personal possessions of the wife. I do not say that the courts would always accept that, but we want to establish the principle that those things are hers as of right.
I have information about one case in which the wife saved £130 partly from her housekeeping allowance, partly by taking lodgers and partly through "Co-

op" dividend. The husband claimed those savings when the wife left him, and the Oxford court upheld his claim. The Married Women's Association took the case to the Court of Appeal and lost. The husband's estate was never revealed. I am glad to say that that law has since been amended so that today a wife is able to keep half the savings. If that law can be amended, it is proof that there is not such great difficulty in making the other change which we are calling for today.
I could tell the House, from personal knowledge, of many cases which show how important the Bill is. We are bitterly disappointed by the Solicitor-General's reply, and, even accepting all that he said, it will be a long and protracted business before something is done. Naturally, we are anxious to see the report of the Law Commission. It was very helpful with regard to divorce. We wish he had a report today for this Bill. But to say that we must wait for that report is no answer to what we are trying to do today. We want action soon, but we are just being put off again. In my view, the Government are being very unwise.
I hope that we shall have a vote on the Bill and that it will receive a good majority, making clear that we are anxious for action to be taken. If we had not had a good majority in support of the Second Reading of the abortion Bill, we should not have had that Act today. The vote then proved to the Government that the majority of right hon. and hon. Members, and eventually the majority of people in the country, were in favour of a Measure of that kind. Speaking as one of the sponsors of this Bill, I congratulate the hon. Member for Newark on his courage in bringing the Bill forward, and I hope that it will receive decisive support.
Another unfortunate feature of these proceedings is the way in which the Government change their mind. As one of the sponsors, I have been put in a difficult position. Until last night, I did not know whether there would be a three-line Whip against it. I had to listen to the wireless to find out what the Government would do. Naturally, in preparing a speech and in considering how to present one's argument, one is in some difficulty if one does not know whether


the Government will take official action against the Bill or not. I hope that, in future, they will come to definite decisions and stick by them.
The hon. Member for Newark was castigated for what is said to be the bad drafting of the Bill. I remind the Solicitor-General that the Transport Bill was drafted by the Government themselves but they accepted 700 Amendments to it. The hon. Member for Newark has done his very best in securing advice—we are most grateful to those who gave it—and it is not right that he should be told so forcibly how badly his Bill is drafted. One is prompted to reflect that, if the Government draftsmen had done it, it might not have been much better, having regard to the state of some of the Bills which have been before the House in recent years.

1.35 p.m.

Mr. Alexander M. Lyon: I have long been of the view that the law should move towards community of property between spouses, and I welcome, therefore, the principle upon which the Bill is based. However, for the reasons so cogently argued by the Socilitor-General, it is clear that the Bill is an inadequate vehicle to promote that end. For this reason, if the issue is taken to a vote, I shall vote against it even though I sympathise with the sponsors' ideals.
I should not have intervened at all, having regard to the way in which the debate has gone, were it not for the unfortunate head of steam built up in support of the Bill which will now be diffused as a result of what may happen to the Bill either today or at a later stage. It is necessary to guard against the anticlimax which will be felt by many women's organisations which have been led to believe that this is the charter for married women, that it is a major piece of social legislation which would mark a dramatic advance in women's rights.
All I am disposed to argue now is that that is simply not true. I agree with the Solicitor-General that the Bill is un-amendable. If I thought that it could be amended in Committee, I should give it a Second Reading, but it is unamendable for many reasons. The two which most convince me are these. First, according to the Bill, one has not only to judge the value of the property at the time when the issue comes before

the court but one has to judge its value at the time when it came into the possession of the spouses, making allowance for increase or decrease in value over the years during the marriage. That is a task quite beyond the courts as they exist now.
Second—this is very important—most marriages are dissolved, as my hon. Friend the Member for Pontypool (Mr Abse) said, on death, not on divorce, yet on death there is no provision for the division of the property. That would be decided according to the law of England as it stands now. Therefore, for the married woman who lived happily with her husband until his death, there would be no redress under the Bill; she would find herself dealt with under a law different from that which would had dealt with the matter if their marriage had been dissolved, unless they had gone to the court during the marriage and asked for an order. I do not believe that that can be right.
Those two major flaws in the Bill come about because the drafters of the Bill tried to avoid the objections raised to the idea of community of property by the Royal Commission on Marriage and Divorce, which reported in 1954. By a majority of 12 to 7, the members of the Commission came down against introducing community of property into the law of England. They were against it because, wherever it has been applied abroad, there has almost inevitably been the question of who will administer the property during the marriage. It is all very well to say that, at the end of the marriage, the parties shall have it 50–50. Who decides during the marriage what is to be done with the property, whether it should be used for investment purposes—and if so, in what investment—whether profits of a business should be ploughed back into the business or used to buy a new motor car, and so on? Who decides?
In most continental forms of community of property, and in the United States, it is the husband who decides. The Royal Commission thought, rightly in my view, that that would be contrary to the view of women as advocated by the womens' organisations and which is generally felt to be desirable in society today, namely, that there should be equality


between the sexes during marriage. But to devise a system of community of property which allows for equality of representation in the administration of the property during the marriage is a fearsome task which I should not like to undertake, and I sympathise with the Law Commission if that is what it is trying to do. No wonder it is taking some time.
Unless it is decided that there shall be equality not only at the end, but all through the marriage, there are real problems about the disposal of the assets and the way in which they should be valued. These objections are vividly portrayed in the defects in the drafting of the Bill which has been exposed today. It is because the drafters were trying to get round the objection of the Royal Commission and deal with the question at the breakdown of the marriage that they have got into these difficulties.
Until one can decide on a different principle on which to frame community of property, one cannot get round those difficulties. It is no good saying that we can amend the Bill in Committee and pool our legal brains and decide the appropriate Amendments. We must decide on a completely different scheme, and so far no one has given a cool, clear, calculated look at this, except the Law Commission. It is desirable that the Commission should be allowed as much time as it needs to work out a proper scheme which would be valid in modern conditions. Therefore, there is bound to be delay, possibly of some years.
I am anxious to prevent a fear among married women that this means that, because the Divorce Reform Bill might go through during this Session, there will be a period when their property rights will not be as strong as they would be if the present Bill were passed, that they will, therefore, be at a disadvantage, and that the delay is a scheme by men to discriminate against women. I wholeheartedly reject that point of view, which fails to understand how well-protected married women are under the present law. In some cases, it would help to go for community of property, and, therefore, there would be some benefit, but it would be only marginal. It would not be of crucial importance in the rights of women.
The real difficulty about the division of property after the breakdown of marriage is that in most cases there is so little property to divide. If the husband is wealthy and a man of property, there is no difficulty. Even if none of the property is in his wife's name, and she has never earned a penny since the day they married, the whole issue can be decided on the arrangements for maintenance.
The hon. Member for Plymouth, Devonport (Dame Joan Vickers) asked how many hon. Members who have spoken had practical experience in these matters. I have listened to at least three who, I know, have substantial experience in these matters, and I have had a good deal of experience in the apportioning of property after the breakdown of marriage.
I remember a case of a dentist earning £5,000 a year who had two houses, two motor cars and a number of other pieces of property. His wife had never worked since the day they got married, but we obtained for her an income of £2,000 a year, one of the houses, one of the cars and substantial investments, all on the maintenance proceedings. This was not under Section 17 of the Married Women's Property Act, 1882, to decide on the apportionment of the assets, but because we persuaded the Registrar, I believe rightly, that if the husband had all this property he could make a proper allowance in the form of maintenance. Some had to be secured, and some had to be a lump sum. As a result, the husband was prepared to settle one of the houses and one of the cars on the wife.
Where the property exists, there is usually little difficulty. The matter can be arranged in such a way that the wife gets a fair apportionment of the assets as well as the income. The difficulty comes when there is little or no property, which happens in the majority of cases that come before the courts. The Jean Graham Hall Committee said that in 80 per cent. of the cases before the magistrates' courts the husband's income was less than £16 a week.
There is not much property available to the parties if the husband has been earning only that amount during the marriage; in most such cases there is no property to argue about. It is in the


marginal number of cases where the parties do not have much that the argument occurs, and then most of the property is the matrimonial home. Under the Matrimonial Homes Act, 1967, the wife now has a statutory right to occupy the house, which cannot be defeated by any other claimants on the house if it has been registered. In those circumstances, she is protected in the sense that she can continue to live there if she wants to, and that is mostly what the woman wants.
The wife does not want the house to be sold and the proceeds divided, but wants a roof over her head. The only home that they have is the matrimonial home. The substantial asset in the marriage, therefore, can already go to the wife in appropriate cases, at least for her occupation. When the division of proceeds comes, however, she moves out and the house is sold, and the husband's assets can be considered in relation to the maintenance that he must pay his wife.
Therefore, for most marriages these matters are already fully dealt with within the resources of the marriage. The difficulty in property, as with maintenance, is that one cannot get two pints out of a pint pot. While most people do not have sufficient assets or income to keep two houses going there always will be difficulty, no matter what the law is.
To back up my argument that the present position is already pretty fair, and that any change will affect only a minimal number of cases, I looked at the figures for the number of decrees absolute granted in 1967. For men, there were 17,000, and for women 25,000. I make the division so that it shall be seen, in relation to the Divorce Reform Bill, that the idea that it is all a question of the man running off with his secretary, and the middle-aged wife being left alone, is all wrong. The total was 42,000 decrees absolute in that year, but the number of applications to the court under Section 17, under which property matters are usually disposed of, was 557.
It is true that many cases would be dealt with by negotiation and settlement outside the court on the basis of the present law. But the fact that there is such a disparity between the number of broken marriages and the number of applications in respect of property bears out my major point, that in most cases

the property issue is not vital, and that although it is true that some divorced women will be left in desperate straits that is not because the law militates against them but because the economic nature of the marriage is so difficult because the husband does not earn enough.
Therefore, I again urge all married women who have been interested in the problem, and for whom all of us have great sympathy, that the rejection of the Bill, or delay while we await the Law Commission's recommendations, will not seriously prejudice their interests. Some cases will be dealt with unjustly under the present law, and could be remedied by a change, but they are few. They are not really substantial. I do not believe that this Bill is complementary to the Divorce Reform Bill. I do not believe that it is unjust to pass that Bill without passing this Bill. I do believe that women are not sufficiently protected but that they are considerably protected by existing law.

Dame Joan Vickers: Surely the hon. Gentleman has knocked down one of the arguments of the learned Solicitor-General, who said that the Bill would mean undue delay in divorce cases. The Solicitor-General said that divorce cases normally take about 12 minutes to go through, and that there were 40,000 in 1967, so the process of the law would be delayed.

Mr. Lyon: I must not be asked to dispose of the arguments of my noble and learned Friend the Lord Chancellor and of my hon. and learned Friend the Solicitor-General, but I see their point. They are saying that, if one has to take into consideration in property applications the question of who was at fault in the marriage settlement—as one would have to do under Clause 6—one is thereby bringing in, by the back door, an inquest, as it were, on the whole marriage which has already been disposed of in the agreement made between the Law Commission and the Archbishop of Canterbury's Commission.
This point, which was made in the Report of the Archbishop's Commission, is valid against Clause 6. That is all that my noble and learned Friend and my hon. and learned Friend are saying. They are not saying that, in every divorce,


there would have to be an inquiry. They are simply saying that, in those cases where there was to be disposal of assets, there would have to be an inquiry, which would be a substantial burden on the courts. It would indeed be such a burden.
I return to the point I was trying to make. This Bill is not complementary to the Divorce Reform Bill. The married women's organisations should not consider that, if it is rejected, they will be prejudiced in relation to men, or that this is, in some way, an act of discrimination against women, or that, if the Bill were passed it would be a charter for women. I do not believe that it would. It's objective is a modest and useful reform, but I do not believe that it is possible to carry out that reform with this Bill. I believe that we should be wiser to wait until the Law Commission has considered and reported on the matter.

1.53 p.m.

Mr. Emlyn Hooson: The hon. Member for York (Mr. Alexander W. Lyon) has missed one of the prime objects of the Bill. Surely it is not so much concerned with the existing rights under the law, but seeks to establish a certain status for women. It would a shame if the impression went out that, on both sides of the House there was not appreciation of the emotive problem involved.
The hon. Gentleman listed various provisions for matrimonal relations upon a divorce or separation. He mentioned the 1967 Act in relation to the matrimonial home and it is true that the Act gives a married woman the right to remain in possession. But supposing—and this is the point behind the Bill—that a man has bought a house in his own name. He goes out to work and the wife stays at home to rear the family. Her contribution is to run the home as wife and mother.
Unhappily, the marriage goes on the rocks. The property has, meantime, appreciated in value. In law, the woman is entitled to no part of that appreciation. Parliament has stepped in and given her protection in the home, but her status is still that of a dependant, and that is, I understand, what the women's organisa-

tions really object to. Having said that, I hope that I have indicated clearly that my heart is very much in favour of the sponsors of the Bill. But my head tells me that it is an impossible Bill. Having looked carefully at it, I regret that I can see no way of amending it to make it acceptable generally.
I am not saying this in criticism of the drafting. It is unfair to say that this is a badly drafted Bill. It is no worse drafted than many others which come before us. The drafting is, within limits, adequate. But it is an inadequate Bill to deal with the enormous problems which arise from the property question.
I am in favour of a community of property in a marriage, and I think that most happily married couples would cheerfully accept this. But this is not what the Bill does. It does not establish the principle, but simply gives a right to a community of the results of an imagined community of property rights after the marriage has broken up, virtually.
I think that most of the criticisms of the Solicitor-General were entirely justified. I regret that I have to say this, but I think that it is an impossible conclusion for any lawyer to reach that this is a workable Bill. It is not workable. If one has to introduce a Bill to do something of this kind in private Members' time, the only possibility is simply to introduce a principle for the guidance of the courts and nothing else. If one goes a step beyond that, one is in the immediate difficulties that one sees with this Bill. Therefore, we must, as a community, get close to the idea of a community of matrimonial property. To do so means that we have to look at the law in all its aspects and all the repercussions which will inevitably ensue as a result of a major change in the law.
Property law in England and Wales is very complicated. It evolved as a result of a great historical process and everyone who has studied it knows that it is the most difficult branch of the law to reform. There was an enormous exercise in the 1920s, resulting in the 1925 Act in particular. It took years to do, and even then it did not accomplish many of its objectives. It is right that the Law Commission should be looking at the problem and I feel sure that it feels extremely sympathetic about it.
I would like it to go from the House that the general view here is that something needs to be done on this matter. I am sure that that was the impression I gained from the learned Solicitor-General and I am sure that this will be the impression that the Conservative Party's spokesman will give. It is the impression that I wish to give on behalf of the Liberal Party.
We recognise that there is here a gap. It is not so much that the law is inadequate to provide proper maintenance for deserted wives. Indeed, the provisions of the law are very considerable and it is as well in such a debate that some of those previsions have been, as it were, demonstrated to the House. Whether they are always adequately used is a different matter, and whether the principles upon which judges and registrars sometimes; operate would be regarded in this House as entirely reasonable is also another matter.
What we are really concerned with here is with advancing the status of women, and what the promoter is concerned with, in particular, is the right of the woman who stays at home, who makes her contribution to matrimonial life, not by going out to work and earning money and perhaps having property which can be readily indentified as separate from that of the husband, but who makes her contribution to married life by being wife and mother in the home.
The law does not recognise that this makes any contribution to matrimonial property and, therefore, we are concerned with the question of status. But I regret to say that the Solicitor-General savaged the Bill, although in the gentlest way, because it was inevitable that he should do so. I am not prepared to vote against the Bill, because I approve generally of the objectives the promoter has in mind, but I know, as a self-respecting lawyer, that I could not vote in favour of the Bill which, in its present form, is largely unworkable.

2.0 p.m.

Mr. William Wilson: As the hon. Member who during the last Session sponsored the Divorce Reform Bill and who has been actively associated with the corresponding Bill this Session, I have been as closely connected as any hon. Member with the problems and principles which are raised by this Bill.

I have lived with these matters as closely as has any other hon. Member during the lifetime of this Parliament. It is because of my experience that I believe that the House should give the Bill a Second Reading.
Defective though it may be, the Bill appears to me to be part of the developing process of the acknowledgment of the rights of wives. I do not say the establishment of the rights of wives, because surely those rights have existed from time immemorial; the only difference has been that they have not been acknowledged. Those of us who are lawyers know that we are in the process still of moving from the time when the property of a wife became the property of the husband on marriage.
That law has been changed, but I recollect as a law student nearly 40 years ago hearing it well and truly said, without comment and with acceptance, that a man could endow a cat or a college to the exclusion of his wife, and no one seemed to complain about that. But with the Family Inheritance Act, 1938, came the first chink of an opportunity to question whether the disposal of property had taken place properly. The principles of the Bill are simply a logical conclusion of the development of our law over the last hundred years.
As a practical lawyer, I know that when men and women make their wills it is not often that the question of leaving property other than to the husband or wife arises. The general will prepared by any lawyer in his office is generally along the lines of leaving everything to the wife or the husband, or to the children if the spouse should die first. That is the usual way, and in most homes and in most marriages there is no question of there being any other disposal of the property.
Nevertheless, with all the social changes which are taking place and with the different way of approaching this problem and the very fact of the longer deliberations of the Law Commission and the comments which are heard in the House and the agitation outside the House, it is apparent that there is a need for alteration and reform.
I know from my own practical experience that on marriage there still arises the question whether a house should be


bought in the name of the wife or husband, or in both names. Whenever the bride-to-be asks me whether the house should be in their joint names, I say that there is no doubt that it should be. I always add that if the husband-to-be has any question about it, that is the first indication that the bride is marrying the wrong man, because the very element of matrimonial property should be that it is joint.
I am the very first to acknowledge that there are substantial defects in the Bill. I appreciate the problems which could arise. My hon. Friend the Member for Pontypool (Mr. Abse) mentioned that of the widow. I would have liked the Bill in its declaratory stages, in the first Clause, to have made the community of property its substantial point, leaving those who wanted the division of property to be other than 50–50 to prove their case, not, as the Bill seeks, putting the cart before the horse. In any Bill of this sort the declaration of the community of property should be the first Clause.
I apologise to the Solicitor-General because, through no cause of my making, I was not able to be present to hear all he said, but I heard him comment that if the Bill went to a Standing Committee it would be open to all sorts of Amendments. If I wanted no other reason for voting for the Second Reading of the Bill I would have that, for that would be an opportunity for those of us who understand the issues to make our views known. That opportunity should not be lost, because if the Bill progressed no further than its Committee stage, the Committee deliberations would be of use to the Law Commission making its recommendations.
It would be wrong not to give the Bill a Second Reading. It provides an opportunity for the House substantially and in detail to comment upon the issues which it raises. It would be far better for those comments to be available to the Law Commission before it makes its final decisions than for us to make them afterwards.

2.7 p.m.

Mr. Ian Percival: I was sorry to hear my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight) say that those of us who had a certain sympathy with some aspects of

the Bill should not indulge in legal quibbles. I was sorry to hear that said, although he put it slightly differently, by the hon. Member for Coventry, South (Mr. William Wilson). Although in a debate like this one cannot do more than touch the fringe of the legal problems, even with that limitation I would have thought that enough had been said about the legal consequences of a Bill like this to show that they were much more than legal quibbles, and that this was much more than a question of there being some legal quibbles. I would have thought that it was abundantly plain that, however good the intentions of its promoters, the Bill could not be made into a suitable vehicle in law.
It is time that the House started taking note of the fact that that is something that matters. People are getting sick to death of being burdened with more and more laws which they cannot understand, the meaning of which the lawyers cannot tell them and the meaning of which can be determined only after lengthy litigation. We ought not to do things that make people sick and tired of what we are doing.
More than that, if we want to bring the law and the House into disrepute, there is no quicker way of doing so than by continuing that kind of conduct. What people want are fair laws and better laws, laws they can understand, laws which are so clear that people can be told their rights in advance of litigation with some degree of certainty. The sooner we in the House come to recognise that as a principle of some importance, a principle at least as important as any other principle raised by the Bill, the sooner we shall start to restore the esteem of the House in the country.
I was sorry to hear the hon. Lady suggest that this was a necessary Bill to protect women from men; that we men are savage beasts who think that running a home and bringing up children is a second-rate occupation. I accept that there are some men who take that view, just as there are some women who think that it is totally unimportant to look after a home and bring up children. Surely we can proceed on the basis that most married men and women realise that each has a part to play and that, whether that part be going out to earn the necessary money or staying at home to provide


a home for the breadwinner and the children, this is not a question of men against women. Opposition to the Bill is in no way based on a desire to discriminate against women or to maintain the position of men. The point was well adumbrated by the hon. Member for York (Mr. Alexander W. Lyon).
Any ladies' organisations which believe that the Bill would be advantageous to them should have another look at it. At present the situation in law is quite simple; all the assets of the man that can be traced are available for the making of provision for the wife, and all the separate assets of the wife are her own. A wife might say, "What is mine is my own, and what is yours is partly mine." Is there any lack of status there? I would have thought that, as a general principle, that is not a bad position to be in.
Under the Bill, if it were to go through in anything like its present form, there would be at least two obvious disadvantages for the ladies. At present, if I am lucky enough to have a large gift made to me or receive a large inheritance, that event is not just good for me but for my wife also if we happen to fall out, because that is available and must be considered by the court when making provision for her. Under the Bill, however, that would be excluded. If such matters are to be regarded as separate property, they must be regarded as such by the court and no longer be available, and that would not be helpful to the ladies. Likewise, there would be many assets which a lady might have built up by her own industry, good housekeeping, savings and so on, whereas the husband might have spent all of his, so that her assets would be taken into account.
If we were to get down to the principles of this, it seems extraordinary that a Bill that provides that anything that comes to one by means of a windfall should be one's own, while anything that one has worked for should be divided, and that this should apply to a wife as well as a husband. Ladies should be cautious about the welcome they give to the Bill, and they might take a little advice about the possible consequences it would have for them. I mention these facts to illustrate that there is no question of men against women

here, and I hope that, at least in this House, we shall never let these discussions descend to that level.
There has been a wide measure of agreement in the debate, in which mostly male speakers have taken part. We wish to see that, on the breakdown of marriage, there shall be available the means of ensuring that adequate provision is made for wives. Is not that an appreciation of the status of women? I do not see how status depends on passing a Bill like this. We have shown our appreciation of the important part played in marriage by women by our determination to see that if a marriage breaks down wives shall be provided for, having regard to the means available, conduct and so on.
The Bill would introduce an entirely new concept, that of community of property, and its supporters say that that would be a step towards making better provision for women. Those who advocate that must show, first, that it would have that consequence—I have said that it is highly doubtful whether a Measure like this would have that consequence—and, secondly, that it would be workable, because there is no point in having intentions, however good, unless they are workable. The question here is whether we should try to improve the present machinery of the law, or introduce a wholly new concept. This debate will have been useful in that it may have helped to draw attention to some of the considerations that arise which perhaps have not been fully considered.
I hope that those who have not done so will have a closer look at the machinery that already exists. In 1963 a provision was introduced which enabled the court to award a lump sum and, as far as I know, there are no qualifying limits on that power. I believe that there is room for improvement in the law. I want my position to be clear. I accept that there are cases in which the law does not give to a woman whose marriage has broken down that degree of protection which we would like her to have. The biggest difficulty here lies not in obtaining a suitable order of the court but in enforcing that order.
The court has ample powers to make an order. It can, for example, order a lump sum of £X without going into the


question of tracing the property through who owns this and who owns that. It can simply say, when it has all the facts, "You will pay your wife £X", and then the husband must decide how he will raise the money. The court may, when it has ascertained the income of the parties, make such order as it thinks fit without any qualifications as to periodical payments. The difficulty in all these matters is enforcement.
This matter has been under consideration by Mr. Justice Payne and his Committee for some time. The fact that it has taken this length of time is an indication of the difficulties involved when considering the detail of applying the sort of matter we are discussing. It was indicated on Second Reading of the Divorce Reform Bill that the report of that Committee will be before us at a reasonably early date. It is to be hoped that, with the benefit of that report, the Government—and I stress "the Government" because traditionally the Government have introduced legislation catering for such financial payments—will be able next Session to introduce a Bill which will improve the chances of a woman who has obtained an order getting the money it is intended she should have.
I accept that if in some cases that had been recited the court might find itself unable, upon a Married Women's Property Act summons, to make the order which it would wish to make. In those circumstances, let us look again at the Married Women's Property Act as amended by the 1958 Act and ensure that the court has the power which we wish it to have. I accept that we should not draw the distinction that if a woman has put some money in she has rights but that if she has contributed in kind instead of in money she should have no rights. I do not believe that the law is as silly as that.
In the two cases cited by the hon. Member for Newark, it might well have been open to the court, certainly in the case of the wife taking in lodgers, to say, "The wife put some money into this enterprise and, in accordance with the decided cases in the Court of Appeal, we shall not say that her interest is conditioned by the amount of money put in. Her efforts produced the money which was put in. She has an interest in default

of somebody showing us that it should be on a less than fifty-fifty basis". I doubt whether the law is as rigid as the hon. Gentleman thought. If it is, let us change it.
That approach, which is designed to be and is, I think, wholly favourable to the ladies, is quite different from saying that we should accept the principle of this Bill. I find it difficult to find the principle of this Bill. If it is said, "Everything should be shared equally", that is a principle which I can understand. But that means sharing what is brought in and everything which comes in afterwards. The Bill does not say that at all. It distinguishes between two different cases in the way to which reference has been made. That is one reason why it departs considerably from the apparently accepted principle of sharing everything equally and, as was pointed out by the hon. and learned Member for Northampton (Mr. Paget), there is nothing in the Bill which can be called community of property, because it does not come into operation unless there is a divorce or an application. My understanding of the law concerning community of property is entirely different.
We need to clear our thoughts about what we are trying to do. The Bill does not enshrine any principle which has any apparent attraction. It is far from likely to achieve what its promoters intend. There is a far better way of achieving what the promoters intend, namely, by extending the present law where necessary. I beg the House not to fall again into the error of allowing good intentions to lead it into even giving a Second Reading to a Bill which would bring chaos to the law and be a further extension of the practice, in which we have been too active recently, of giving approval to legislation which is so silly, so uncertain and so unintelligible that it serves merely to bring the law into disrepute.

2.25 p.m.

Mr. R. T. Paget: I must admit that, however much I might agree with the ideas behind the Bill, the result is a lawyer's nightmare which cannot serve anybody. However, since it is so incomprehensible, one can hardly blame its supporters for understanding so little about it.


For instance, the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight) said that the Bill introduced the concept of joint property in matrimony. It does exactly the opposite. This is a Bill to divide property by what would be an unbelievably expensive process. As long as the marriage is in subsistence, it is wrong to provide for people to go to the courts in contest and say, "Divide this property". I have an awful feeling that there would be little property left to divide.
Surely this is not the way to keep a marriage going. The less the partners in a marriage think in terms of "yours" and "mine", the more likely it is to work. We are told that it is terrible that many husbands do not tell their wives what is in their wage packet. That may well be wrong. But surely going to the court for an injunction requiring them to disclose what is in the wage packet will not make the marriage more successful.
I turn to the other aspect, which is what one does at the end of a marriage. It is only one end, and mercifully so far the most unusual end, namely, divorce or nullity, or whatever it may be. The Bill does not give the widow any additional rights. She does not gain such advantage as the concept of joint property might confer on her. That does not happen until the application to divide has been made to the court. Therefore, this happens only at the point of break-up.

Clause 1(a) refers to the
increase in the real value of such property".
What is meant by "the real value"? Let me take the example of a farm. If a man and woman married 10 years ago, the value of the farm would have doubled or trebled. Is that an increase in the real value? Is a running inflation an increase in real value? If not, what does "real value" mean? How does one arrive at it?

We have been living for a long time in circumstances in which the owners of property have been receiving an extraordinary reward as a result of inflation. Never before in the history of the world have the rich got richer so quickly.

Sir D. Glover: On paper.

Mr. Paget: On paper.
How does one work out this matter when either the wife or the husband, whoever owns the farm, says, "Two-thirds represents an increase in value during the marriage. Let us settle down to divide it"?
What happens in the case of Capital Gains Tax? Is that part of the increase? What happens to the mortgagee? Does he find that half his security no longer belongs to the man to whom he lent it? How is it to be worked out? It would be unkind to continue this type of analysis through the Clauses of the Bill because, as one goes through it, one simply finds one after another.
I say to my hon. Friends who are promoting the Bill that it cannot become law. It would be a total absurdity on the Statute Book. It is not fair on other people who have Private Members' Bills coming forward in the very limited time that is available in Committee to allow this Bill to go there and for weeks on end block all the other useful Bills which are before Parliament.
I therefore urge my hon. Friends to accede to the representations which have been made to them. They have had a debate, their objective has been approved, but it has surely been made abundantly clear that in these terms the Bill is totally impractical.

2.32 p.m.

Mr. Percy Grieve: The House has been almost unanimous in approving the obvious motives and objectives of the promoters of the Bill. The question which the House has to decide is whether the Bill does anything to succeed in furthering those motives and objectives. My submission is that it does nothing of the kind.
The second observation which I desire to make is that the House is deeply indebted to the Solicitor-General for his comprehensive and lucid review of the enormous number of objections which anyone with any training in the law must feel in approaching the Bill. I do not propose to go over all that ground again. All that one can do at this stage of the debate is to look at some of the examples of the harm that would be wrought by the Bill and some of the main objections to it.
I suggest that the Bill is wholly inimical to the interests of any woman who has separate property. It does not


further or protect those interests, but would do them great harm. That is so whether a wife brings property into the marriage or acquires it afterwards or by her industry, her job, by acting as a model, running a shop or doing one of the many things that women do so successfully to provide themselves with a competence of their own.
If a wife obtains any money by her occupation outside the home, that falls in for division under the Bill. I agree with the hon. and learned Member for Northampton (Mr. Paget) in wondering what an
increase in the real value
is. It obviously means something because it is there in the Bill. Some increase, therefore, in what the wife brings in before marriage will fall to be divided under the provisions of the Bill.
To carry it to absurdity, it means that if the wife brings 12 teaspoons into the marriage and they increase fourfold in value before the time of the divorce, one-half of three-quarters of the value of those spoons will belong to her husband. It is absurd.
It is not only the absurd, however, with which we are concerned. If the wife brings in shares, land, a cottage, or a home, or anything of that kind, and it increases in value, to the extent that meaning has to be given to the words
increase in the real value",
a proportion of that will become her husband's, whereas at present it is totally and wholly her own.
What would be the position of a woman examining her affairs and being advised if the Bill were ever passed into law? Suppose that she has been deserted or has been left by her husband for someone else? Her advisers will be obliged to say to her, "Your position is that not only is your husband leaving you or deserting you, but, subject to the discretion given to the court under Section 6 of the Act, he is entitled to half the shop which you have set up and established by your earnings since the marriage and half the increase in value of the cottage which you brought in when you were married." Any woman who, by her efforts, by inheritance, or by any other means has any property of her own,

has her interest gravely depreciated and taken away by the Bill.
That alone would be a valid reason for pausing on the threshold and asking whether the House should give the Bill a Second Reading. In my submission, however, the objections go further. The Bill seeks to impose on all the people of England subject to their right to contract out, but subject to the right of the court to set aside such contract, a matrimonial régime which has been part of the matrimonial system in France, the régime of Communauté des Biens Reduite aux Acquets.
As the House will know, the ordinary matrimonial régime in France has for many years been one of community of property, and property has been held in common unless the parties to the marriage make a special marriage contract for providing for some other way in which their property rights shall be regulated between themselves. One of those ways is almost exactly what the Bill provides.
It is significant that in France in recent years it has been found that the régime of community of property is wholly inapt and unadapted to a sophisticated, modern society. It has been found that it is almost essential, to protect the rights of the parties to a marriage, that before the marriage they shall have to enter into a marriage contract to do away with community of property and provide that it does not prevail between them. It has been found, moreover, that the reduced form of community which is provided for in the Bill is also unadapted and unsuitable to modern social conditions.
The French have come to see that the only system of property holding that is adapted to modern conditions is that of separation of property such as we now have in this country. The only way in which the rights of spouses, and particularly of women, can be safeguarded is to provide that they shall own their property separately and that if a marriage breaks down the court shall have as much discretion as is possible to provide that the husband makes proper provision for his wife.
I cannot believe that what the French are abandoning after all these years can possibly be a right and proper way of safeguarding the rights of women in British society in 1969.

Mr. Percival: Is it not also the fact that community of property has been the general law of South Africa for a long time, but that for some time it has been common form to contract out of it before marrying? It has been tried and found wanting.

Mr. Grieve: I am obliged to my hon. and learned Friend. I believe that that is the experience in a great many Roman law countries and in countries which have the Napoleonic code.
It has been found that these difficult and complicated provisions are not suitable to modern conditions where a very large part of property is owned by women and that if women are to be protected the only way they can be properly protected is by providing that they shall have their separate property, which their husbands cannot get at save by blandishments, with which no legislation can be expected to deal.
In those circumstances, my submission to the House is that much the best thing we can do is to leave the system of separate property as it is but to do all that we can to see, particularly when the Law Commission makes its report on matrimonial property, that the interests of the wife are protected when a marriage breaks down and that the court has the fullest possible discretion to protect the interests of the wife. Much as I respect the motives of those who have sponsored the Bill, I really do believe that the Bill is not able to further them and would do great harm—indeed, would undo the objectives which the Bill's sponsors have in view.

2.40 p.m.

Mr. Arnold Gregory: I do not intend to delay the House long by what I have to say as a layman. It is a rather difficult and dangerous process to enter into a close community of lawyers and to intervene in a series of very good legal speeches, both those which have preceded mine and the ones which will follow very soon, but I think that it should be emphasised that there is a layman's point of view.
I listened very carefully to what the hon. and learned Member for Southport (Mr. Percival) said. He was objecting, I think, for a time, to the fact that we have had too much law of late and

far too complicated law. I respectfully suggest to him that what we are concerned with here is reform, and that there is a wider examination which we can take, and that is of the social status of women in their relationships with men. The point of view of the lay member was very clearly defined by my hon. Friend the Member for Coventry, South (Mr. William Wilson), and that is that the House of Commons rather than the Law Commission should be given a chance of examining this social question.

Mr. Percival: I am not complaining against complicated law per se. There can be complicated law which is nevertheless certain, and in some cases we have to have complicated law. What I am complaining about is law which, from the start, is not just complicated, but unintelligible, or partly unintelligible, and so vague that nobody can tell the citizen what it means. This is an example of that.

Mr. Gregory: I am obliged to the hon. and learned Member for his help, but I suggest to him that by the Bill we are given an opportunity of thrashing out in Committee what is an important matter, and we may there possibly gain the support and advice of the hon. and learned Gentleman. We possibly have here what, in the words of my hon. and learned Friend the Member for Northampton (Mr. Paget), is a lawyers' nightmare, but there again is this concentration by lawyers on the points of law, but I would have thought that the law and the Bill itself would have been a sheer delight to them, but what we laymen are very much concerned with is the chance by this Bill, examined in Committee, to throw a little of the light of day upon the law. We are concerned about the legal status of women, and that is a matter which we could clearly examine in Committee.
There was an article in The Times only a few days ago by Dr. Olive Stone, Reader in Law at the London School of Economics. She was making the point that the law in this respect is very old and needs reform, and she said:
Over the years the 1882 Act has been considerably amended, and the only parts now in constant use are Section 11, which deals with insurance policies, and Section 17, which enables a husband or a wife to obtain a summary judgment about either the title or the right to possession of property in dispute. The latest


amendment, the Matrimonial Homes Act, 1967, is not a property Statute at all, It gives the wife or husband of the owner of the matrimonial home certain restricted rights to remain in or to be put in occupation of that home. It is concerned solely with occupation rights of non-owners.
I suggest we are dealing with a social question and we have an excellent opportunity of discusing reform, and after all the existing law is 80 years old.

Sir D. Glover: May I ask the hon. Member this question? Taking into account the limited amount of time there is for Private Members' Bills, what is the good in giving a Second Reading to a Bill which, except for its Long Title, will have to be completely redrafted in Committee and, therefore, take up much time so that perhaps not another single Private Members' Bill will be debated in Committee this Session?

Mr. Gregory: I suppose that that is a fair comment from the hon. Member's point of view. My response is that we have to take a judgment on the case which has been submitted on this matter.
I have had letters about it from my constituents, and I am sure that he has similar experience. That is a test of the interest which people take in the Bill. One of my own constituents wrote to my hon. Friend the Member for Newark (Mr. Bishop) giving a test case in support of his Bill. I do not intend, as I said, to speak for long, because I realise that there is much to be said on the legal points which hon. and learned Gentlemen wish to make, but I urge this consideration on the House: that this is an excellent opportunity to allow the House of Commons rather than solely the Law Commissioners to consider reshaping and reforming the law. We could have that chance in Committee on the Bill. There we can consider not only case law which we know, but also the present procedures and principles. We could consider reshaping the law and bringing it up to date by giving the Bill a Second Reading.

2.46 p.m.

Mr. Mark Carlisle: I think that, with the exception of that by the hon. Member for York (Mr. Alexander W. Lyon), I have heard all the speeches in this debate, and I think that all hon. Members will agree when I say that it has been an extremely interesting debate

on an important matter. The hon. Member for Stockport, North (Mr. Gregory) spoke of daring to intervene as a non-lawyer in what is mainly a legal matter. One thing which has surprised me about the debate is that so far we have not heard one female voice raised from the other side of the House. Knowing how active many hon. Ladies opposite have been in supporting Bills of this sort it is a matter of surprise.
Summarising the speeches which we have heard, one can say that it is the general feeling of everyone who has spoken that there is something which needs to be done, but there is grave anxiety and doubt whether this Bill is the correct way to do it. What I would call the underlying principle of the Bill, the desire to provide for a fairer, more equitable distribution of property between husband and wife on the breakdown of the marriage, is certainly a principle which I wish to support. I believe it has the support of the majority of hon. Members who have spoken.
Having said that I give support to that underlying principle of the Bill, and having listened to the debate, one is faced with the problem that the Bill as drafted is probably unworkable, and, in my personal opinion, goes far too far. I think it was the hon. Member for Pontypool (Mr. Abse) who described it as ambitious. I would describe it as too sweeping.
I say that, firstly, because it provides for community of gains, a principle which I, personally, am not convinced about, and about which, I think, there are grave doubts, and I believe the working of it would be incredibly difficult. Secondly, it provides for division on equal terms of any property acquired by either spouse during the marriage, from whatever source that property may come, provided that it is not by gift or by bequest. Under the heading of matrimonial property it covers not only what we might consider the normal family assets but everything which has been acquired, whether shares, investments, savings, goodwill in a partnership or the building up of a family firm. It presumes that all those assets, from wherever they come, should be divided between the parties. For reasons which I will suggest to the House, I believe, whilst giving my support to the underlying principle of a fairer division


of properly on termination of marriage, that the provisions of the Bill are far too wide, far too sweeping, and any attempt to put all assets under one umbrella will not achieve a fair distribution between the parties.
The law seems to many of us to fail adequately to take notice of the enormous non-financial contribution that a wife makes to a marriage, her contribution in running the home, in providing for her husband's needs and in bringing up the children. As the hon. Member for Newark (Mr. Bishop) said, marriage is a partnership. It is a partnership in which each party plays an equal part, in which a wife's part, her duties in the home, is equally as important as that of the husband in providing for the financial support of the family.
What needs to be looked at in the law is the question that whether or not a wife on divorce becomes entitled to any share of the ownership of the assets which the family has acquired may depend on whether she has made a direct financial contribution towards the purchase of those assets.

Sir D. Glover: This theme has run through the whole of the debate. It is not the wife; it is the wife or the husband.

Mr. Carlisle: I appreciate that it is the wife and the husband, but I think my hon. Friend will agree that in the vast majority of cases in practice it is the wife who is concerned. I accept entirely that this works both ways, and this is one reason why I am opposed to the principle of community of gains.
If the wife works and earns a wage or salary, so that she makes a direct contribution towards the purchase of the matrimonial home by way of a deposit or by instalments, or if she helps towards the purchase of the furniture, under the law, whatever her share of the contribution may have been, since no intention will have been made clear, the chances are that she will obtain 50 per cent. of those assets to which she has contributed.
But what if she does not work? What if she gives up her job at the instigation of the husband for the purpose of running the home and bringing up the children? In those circumstances, because she has not made a financial contribution, she

may get nothing. We are concerned with the distinction between the recognition of the purely financial contribution and the non-recognition of the non-financial contribution, and it is that distinction which I believe many of us feel to be unfair and inequitable.
So long as the marriage is going happily, nobody worries about who owns what, but the question of ownership assumes enormous importance when the marriage comes to the point of break-up. That there is a general problem, I have no doubt. It is one thing to pose a problem, and another to suggest the right solution. The trouble begins when one attempts to devise a fair distribution.
There are so many vagaries in marriage, so many alternative situations with which one might be faced. One must be fair to the wife who has been deserted after 20 years' of marriage; equally, one must be fair to the husband whose wife chooses to go off within a few months of the marriage. So many different situations must be taken into account that to suggest, as the Bill does, that a straight 50–50 division of everything which has been acquired during that marriage by either party is a system that will achieve justice goes too far. The answer to the problem is nowhere near as simple as the Bill suggests.
Some hon. Members on this side of the House during the last twelve months have been studying the whole problem of the rights of women. I would suggest to the House what is a purely personal view but one which would achieve a much fairer distribution on a narrower scale than the Bill suggests.
To take a practical view of what people acquire during the period of their marriage, property must be divided into two halves, the family assets and the non-family assets. By family assets, I mean the house and its contents and other items of property which may be acquired which are intended for or used for the enjoyment of the family as a whole; for example, the family car, provided that it is not owned by a hire purchase or an ordinary company. To the vast majority of people those are the assets of the marriage. They have been acquired by the efforts of the family and by the willingness of the wife to save and to provide for the home just as much as if


she had gone out to work and earned a living. In the limited sphere of what I would call family assets, there is much to be said for the argument that there should be a presumption that those assets would be divided equally between the parties.

Mr. Baxter: If a husband and wife decided to be very careful in the way that they lived and did not spend the family resources on a car, or some other expensive item, which could be seen as a family asset, but, instead, invested that capital in shares, would the hon. Gentleman concede that any increase in their value over the years would become a family asset?

Mr. Carlisle: I am grateful to the hon. Gentleman for raising that point, and perhaps I might answer it presently. I shall be coming on to deal with shares.
In the matter of family assets, it is reasonable to suggest that one way of looking at the problem is to say that there should be a presumption that the division should be 50/50, though not in every case, because, in view of the differing circumstances which one can have in a marriage, there must be an over-riding discretion in the hands of the judge. For example, if at the time of the marriage the husband had money with which he bought and furnished a house, only to have his wife leave after a few months, obviously it would be unjust for the wife to have any share in those assets.
There is an argument for the division of family assets in that way, but where the Bill goes too far and is wrong is in attempting to lump together family assets and non-family assets. Shares are an example. There may be circumstances in which the wife has the right to some proportion of the savings that she and her husband had acquired, but it would not be justice to provide a presumption which assumed that, for example, a family business might have to be split up 50–50 on the termination of the marriage. Although it could be argued that a wife might be entitled to a share in assets other than family assets, they cannot be lumped together in the way that the Bill suggests.
Equally, it would be wrong to attempt to draw a distinction between assets which one spouse receives as gifts or

other means of acquisition. Following the argument of the Bill, if a table or chair is given to one party to the marriage, but intended for both, that piece of furniture remains only the one party's property. However, if the wife is left some shares which gain in value, according to the argument of the Bill she retains the shares but any gain in their value becomes community property. I do not believe that any division on those lines is practicable. It is a nonsensical division, and any principle of community of gain on property separately acquired would be unworkable and unjust in practice.
We have been told by the Solicitor-General that this is part of a much wider problem, that the Bill raises problems of bankruptcy, problems to do with Capital Gains Tax and problems of succession. Although I cannot pretend that I was impressed entirely by some of the hon. and learned Gentleman's arguments and detailed objections, no one can deny that this is a complicated and controversial subject, and people may feel that it is too complicated for Private Member's legislation.
That does not mean that we should accept happily the position that the Government have chosen to adopt, because it is an extraordinary one. We are told that, until yesterday, there was a three-line Whip for Ministers against the Bill and a two-line Whip for non-Ministers. Then we understand that there was a mini-Cabinet meeting in one of the corridors of this House at a late hour last night and that, after all, the Government decided that they would rely on the eloquence of the Solicitor-General to carry the day without having a Whip.
The hon. and learned Gentleman said that the Law Commission is looking at the whole problem of financial provision in marriage, as we know. He says that the working paper on matrimonial property should be ready by the end of this year. Probably he will not deny it when I suggest that, if the working paper is ready by the end of the year, with luck or with great assiduity by the Law Commission, it is possible that the report might be in by the end of next year. If everything went according to the quickest possible progress, it would appear that we might get legislation through on some line by the summer of 1972.


I find the Government's position difficult to understand, because they have chosen to give time to divorce reform, but are not prepared to give time to consideration of the great difficulties involved with the disposition of property on the breakdown of a marriage.

Mr. Abse: Is that not rather a distortion of what the Solicitor-General has said? My hon. and learned Friend has made it abundantly clear that it would be possible, if the House wanted it, to put through a Measure on matrimonial relief, which could include property matters, in the next Session. I think that, speaking from the Front Bench, the hon. Gentleman would be doing a greater service to the women's organisations in this country if he pressed that view on the Solicitor-General.

Mr. Carlisle: I am grateful to the hon. Gentleman. I appreciate that the Solicitor-General said that matters concerning financial provisions might be able to be dealt with in the next Session. I accept that that is an important corollary to divorce reform of any kind. But I do not think that we can get away from the fact that that must be looked at in the general context of matrimonial property. What concerns me is that, in view of what the Solicitor-General has said, it is undoubted that any review on that feature is likely to be at the earliest some time in 1972.
I have spoken for long enough and others still wish to speak. I end by saying that, of course, on this side of the House, it being a Private Member's Bill, there is a wholly free vote. Some may take the view that the underlying principle of attempting to obtain a fairer distribution of property on the breakdown of a marriage is worthy of support at this stage and that the Bill can be amended to achieve that limited object. Others may take the view that the Bill is so wide in its implications that it is too complicated a matter for Private Members' legislation, that it cannot properly be amended and that, therefore, they cannot support it at this time.
Until I listened to some of the speeches, I admit that I had a tendency to say, "Here is a principle of fairer distribution, in the much narrower term, which I might feel able to support." But, having listened to the arguments, I come

round to the remarks made by the hon. and learned Member for Montgomery (Mr. Hooson) who said that, as a self-respecting lawyer, he could not possibly support it. I believe that the Bill is so unworkable as really to be insupportable, although I sympathise with the principle. I only hope that the debate has at least achieved the object that, if the Law Commission is to look into the matter, it will bear in mind the views and the warnings that have been expressed about the dangers of going too far in this direction if a just and workable solution is to result. I hope that when we have the recommendations of the Law Commission we can look upon them on their merits on the basis of seeing whether they in fact provide for a fair distribution.

3.9 p.m.

Mr. William Baxter: As this is still a United Kingdom Parliament, and notwithstanding that Scotland is excluded from the provisions of the Bill, I seek the liberty of expressing a point of view.
I have listened to most of the speeches today with a great deal of interest. It seems that the lawyers are speaking with a united voice in saying that the contents of the Bill, if passed in its present form, would land the courts, the law and the population in general in some difficulty. There is no Bill which has been placed before us at any time which, if passed in its original form or even when passed in an amended form, did not give rise to many difficulties from time to time.
I subscribe to the opinions in the first part of the speech by the hon. and learned Member for Southport (Mr. Percival). He talked about the complicated nature of some of the Acts which have been passed through this House. I also agree with him that this puts us into an unfortunate position with reference to Parliament as a law-making institution. On many occasions in the past Measures have been passed, not least the Land Commission Act, which have illustrated what the hon. and learned Member had in mind. This Bill lays down certain principles and those of us who have had many years in local government or Parliamentary work must have come across many cases in which women have been left in very difficult


and trying circumstances. There is no doubt that as the law stands—at least in Scotland, and I am certain from what I have heard this afternoon the same applies in England—there is a built-in resistance to the rights of women.
The principle contained in this Bill is that the assets of a marriage, if the marriage breaks up, whether they are the assets of the man or the woman acquired during the marriage period— whether a family car or shares or farms which have increased in value—should be equally divided between the two parties. We have brought about a unity of purpose when we have brought about a marriage between a man and woman. A man takes a woman and the woman takes a man for good or bad for the years that lie ahead. The man endows the woman with all his worldly goods. Even if it is only the worldly goods of the two of them during the marriage contract, those goods should be equally divided when the marriage breaks down. I see nothing fundamentally wrong with that.
I hope that if the Law Commission goes into the realms of the relationship between a man and wife in the breakdown of marriage it will have regard to equity between man and women. There is no inborn right for a man to get more out of a contract of marriage than the other partner simply because she is a female. In a business partnership, whether the other partner be male or female, the same law applies. In marriage once a man and woman have become wedded a contract has been entered. That contract should presuppose the equal dividing of all that is acquired during the period of the contract.
I hope that when the Law Commission considers this the Government will not only have regard to the law of England but will give thought and consideration to embracing the position North of the Border. The same applies there as here. Many women—and sometimes men—are left in an unenviable position because the opposite partner in the marriage has left, has disappeared and cannot be found again. Sometimes it is impossible to trace the one who has gone away. The problem will become more difficult to solve with the passage of time and the way that divorce is becoming much easier than hitherto.
It is my wish, therefore, that the Government, when considering the recommendations coming from the Law Commission for England, will pay special regard also to the problems experienced in Scotland. As I said in an intervention, I very much hope that, if the Bill is given a Second Reading, an Amendment to treat Scotland in the same way will be acceptable. I have a letter here from an elderly lady who has been married for about 30 years. She has a family. Her husband, a man of 68, has become infatuated with another woman. There are some of us not yet 68, so we do not know what difficulties may lie ahead for us. The fact is that this poor woman will be turfed out of her home because the house and home is in the ownership of the husband.

Mr. Wilkins: It could happen in England.

Mr. Baxter: It can happen in Scotland, too. I have information about another case here, a man and woman with three daughters. The man leaves the house and goes off to stay with another girl, and she has an illegitimate child by him. The original house where the wife and the three children are staying is sold over their heads. Where do those people go? Their only recourse is to what we used to know at National Assistance.
There is no justice in the law as it stands at present. True, the Bill does not go far enough and it has its imperfections, but it is the right and duty of right hon. and hon. Members, when a principle of such importance for the well being of the great mass of people is involved, to do all they can to make it a workable Measure, to make it something which will bring justice to those who have been wronged through no fault of their own.
With all respect, the hon. Member for Runcorn (Mr. Carlisle) went part of the way, but he is worried about where to stop. He cannot stop because he will then be on the slippery slope: if he agrees to the general principle that household chattels and assets should be the subject of equal division, he cannot stop there because the logical conclusion follows that he must support the provisions of the first Clauses of the Bill.


I counsel the House, therefore, not to cast the Bill out because of the legal imperfections of its phraseology, but to send it to Committee for consideration, for adjustment and for amendment, so that there may be brought back to the Floor a Bill which is equitable and fair to so many of our people.

Sir D. Glover: Sir D. Glover rose—

Mr. Percival: Mr. Percival rose—

Mr. Speaker: Sir Douglas Glover.

Mr. Percival: On a point of order, Mr. Speaker. I thought that the hon. Gentleman was giving way to me.

Mr. Speaker: I thought that he had finished. Only he knows. Apparently, he has.

3.19 p.m.

Sir Douglas Glover: I am glad to be called in this debate as one of the few non-lawyers. If I may intervene in the small argument which, I think, was about to develop between the hon. Member for West Stirlingshire (Mr. W. Baxter) and my hon. and learned Friend the Member for Southport (Mr. Percival), I suspect that my hon. and learned Friend was about to point out that the hon. Gentleman would not be able to bring in an Amendment to extend the Bill to Scotland because it would not be covered by the Long Title. If it is not covered by the Long Title, no Amendment can stand.
In all our debate, I have not heard a speech hostile to the aims of the hon. Member for Newark (Mr. Bishop). It has been pretty much a lawyer's paradise, and on this occasion, rather than make "snide" remarks about the lawyers, the House ought to acknowledge its debt to them, because they have shown the imperfections and unworkability of a Measure for which a great many people have emotional sympathy. I am glad, therefore, as a non-lawyer, to have the opportunity of at least saying that.
I have a great deal of sympathy for the hon. Member for Newark. Having put my name in the Ballot for 15 years and never having drawn anything out of the box, I understand his keenness and anxiety about this little baby. Perhaps "baby" is the right word when we are dealing with a matrimonial problem. But

I have an awful feeling that at 4 o'clock the Bill will prove to have been a stillborn child. I cannot think that the House in its wisdom will allow it to have a Second Reading.
The aims behind the Bill are laudable, but it is so imperfectly drawn that, if it left the Chamber and ever came back for Report and Third Reading the only thing left would be the Long Title. Even as a non-lawyer I can see that. Many other hon. Members have been lucky in the Ballot, but only one Committee is devoted to Private Members' Bills. Would it be right to send it a Bill so imperfectly drawn that the whole of its time for the rest of the Session would be devoted to producing a completely new Bill, which might or might not be workable, depriving every other hon. Member of the chance to make further progress with his Bill?
There are a few other things I should like to say against the Bill. First, I have heard nothing about how it would begin to operate if it became law. I know that there is a long tradition of the lawyer at the funeral, but it seems to me that, if the Bill became law, there would need to be a lawyer at the wedding to see that the property was carefully divided up.

An Hon. Member: Two lawyers.

Sir D. Glover: I agree. There would need to be two lawyers at the wedding, to decide which gifts were given to the husband and which to the wife, and which were given jointly. I cannot think of a worse way of getting a marriage off the ground.
Part of the weakness of the thinking of the hon. Member for Newark and his supporters is that they have a mental picture that we are dealing with little Joe Soap and his wife with a council house, the chattels in it, and a secondhand car. If the marriage breaks up, and they have to divide those chattels, we are talking about £500, or perhaps less. I am sure that it is a laudable aim to try to deal with such a situation, and I support the sponsors of the Bill in that object, but one cannot produce a law that suddenly stops when those conditions cease. The implications of the Bill apply far more widely, and it is in the wider field that the sponsors have not thought of the pitfalls, which the lawyers have made clear they have fallen into, instead


of producing a Bill that would make legal sense and not a lawyer's paradise.
Nobody has mentioned children. If I read my papers correctly, there is a thing in matrimony known as the "roaring forties" or the "30-year itch". Not all divorces occur in the first five years of marriage. Many take place when the family has grown up, when, as the hon. Member for West Stirlingshire said about the gentleman of 68, the searching eye perhaps begins to operate when it should not. Let us consider a family with a business. Perhaps the father has been rather irresponsible and the mother of the family has run the shop, worked hard, and lived frugally. But, because she had to look after the household and family, the basic value of the property, may have stayed pretty static for 20 years, apart from inflation. Now supposing that the eldest son is 25 and takes over the management. She has not given it to him. He has simply taken it over. Because of his skill, he builds up this handy little business into a substantial organisation.
Then the thriftless father, seeing some delightful Elysian field elsewhere, decides that if he has a divorce he can get £10,000 on the business that his wife and son have built up.

Mr. W. Baxter: That is so at present.

Sir D. Glover: I do not think so. The courts would decide at the moment. What we are being asked to accept now is that the result of the efforts of the wife and son should be equally divided between the wife and the husband. I am sure that that is the opposite of what the sponsors of the Bill had in mind. The Bill would appear to be taking away the power and discretion of the courts to apportion an estate between two people who are getting a divorce on their own mature judgment and would introduce a rule of thumb.

Mr. W. Baxter: Let us assume that the wife is absolutely opposed to a divorce, perhaps on religious grounds. The man leaves and takes to himself another woman. He decides to sell off the business which his wife and son have built up. What happens then?

Sir D. Glover: I am not a lawyer. I do not know. But here we are dealing with divorce. If there is not a divorce,

then I do not know whether the wife would have, in that case, the right to sue her husband, for example. But we are dealing with divorce, which is totally different from the case suggested by the hon. Gentleman. I would add, however, that the sort of situation he raises is one of the problems which would not be cleared up by the Bill.
We have had a most valuable debate. The problem has been clearly put to the House. Perhaps I may pay the learned Solicitor-General a compliment because I was a little rough with him the other night. He made an admirable speech today, and put the matter clearly for us to make up our minds. The overwhelming argument is that the Bill is wrongly constructed and would be unworkable, unless it were so amended that there would be nothing left and it would, in effect, be a different Bill. We should not give a Second Reading to a Measure which would have to emerge as a completely different Bill if it were to work.
The sponsors of the Bill seem to have been flitting in and out of the Chamber. Perhaps they have been having consultations. After the assurances of the learned Solicitor-General, it would be far more dignified and far better in the long term interests of what they wish to achieve if, instead of making the House divide, they withdrew the Bill.

3.29 p.m.

Mr. Gordon Oakes: As the hon. Member for Ormskirk (Sir D. Glover) has just said, the sponsors of the Bill have been flitting in and out of the Chamber to confer with each other. One of the reasons for that is that we can be proud of the House today because what we have had has been a debate. Some hon. Members have come with the intention of supporting the Bill but anxious to hear my hon. and learned Friend the Solicitor-General. Others have come intending to oppose the Bill but hoping to hear my hon. Friend the Member for Newark (Mr. Bishop). They have come into the Chamber open-minded, and that is one of the best features of private Members' legislation.
We have heard about all the difficulties of drafting and timetabling for the private Member. It has been a good debate, a good and a free debate, and it has become free even for my hon. Friends who are Ministers. Hon. Members have been


able to make up their minds on the speeches they have heard from both sides of the House both for and against the Bill.
Winding up a debate such as this is a difficult task for a sponsor. Having heard all the speeches, except that of the hon. and learned Member for Montgomery (Mr. Hooson)—and I apologise to him for having missed it—I feel rather like the man being choked with cream. Nearly everyone who has spoken has paid warm tribute to the objects behind the Bill. Nearly everyone, the only possible exception being the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell), has laid stress on how much he has sympathised with the objects of the promoters, how much he has sympathised with the plight of married women when for one reason or another marriages have broken up. Hon. Members have then said that although we ought to do something and although this is an anomaly in our legal system and although these people need justice, as a House we are impotent to provide that justice for them.
We flitted in and out and we discussed various contributions to the debate, particularly that of my hon. and learned Friend the Solicitor-General and the hon. Member for Runcorn (Mr. Carlisle), who spoke from the Opposition Front Bench, because we regarded their contributions as particularly important. However, after our discussions the sponsors have concluded that these proposals have so much head of steam, as one hon. Member put it, outside the House, that there are so many organisations which are rightly desperately concerned to get the House to do something in this controversial, important and urgent matter, that it would be right to ask the House, if necessary, to divide on the issue, if the House does not give us a completely unopposed Second Reading, as I hope it will.
Before I deal with the contributions of hon. Members, I should like to take the House back to first principles, as it were. We are talking about the partnership of marriage and trying to make the word "partnership" a reality in law as well as a trite phrase. Marriage in this country is not a partnership. The wife is often treated worse than an employee under the law of master and servant. Some hon. Members look rather surprised at that.

However, if an employee finds himself redundant after five years, he gets redundancy pay, but a wife would not be entitled even to redundancy pay if she became divorced and a redundant wife. That is one of the examples of the ways in which we treat wives as people who have no rights of their own to property.
Hon. Members have spoken about the various provisions under the law which benefit wives and have said that maintenance may be granted to a wife, but maintenance puts the wife in the position of a dependant, not in the position of an independent person as she ought to be; she is a dependant of her husband.
Hon. Members have stressed the excellent provisions of the Matrimonial Homes Bill which was introduced in the other place by that great pioneer of rights for women, my noble Friend Baroness Summerskill. Excellent though it is that Bill, as the hon. Member for Runcorn rightly said, does not give the wife a property in her house. It gives her little more than a licence to live in the house so that she is not evicted and turned out if the husband tries to sell the house over her head.
Although there are some rights now, they are not rights of property for the wife, and that is the first thing that the Bill is endeavouring to establish. We wish to establish in the courts the principle that a wife shall be considered to have a right to matrimonial property acquired during the course of the marriage.
A number of hon. Members have spoken on this issue, and particularly the hon. Lady the Member for Birmingham, Edgbaston (Mrs. Knight), who stressed the value of a wife in the performance of her wifely duties. She spoke of similar work done in children's homes and by housekeepers—the actual physical work of looking after a house, cleaning, washing dishes, looking after children, seeing that a husband's shirts are cleaned and ironed and the many other duties that must be performed. There is a definite economic value on these things when someone other than a wife does them. In law, however, they have no economic value when they are performed by a wife.


If a wife goes out to work she can, under the Married Women's Property Act—if she can prove that the money was earned by her—keep that money for herself on a split-up of the marriage. But all the services performed by her over the years in the matrimonial home would have been provided free of cost. She can get nothing for those services on the break-up of the marriage. As the hon. Member for Edgbaston pointed out, these are valuable services which we appreciate, value and must pay for when performed by somebody other than the wife.
A number of hon. Members have referred to defects in the Bill, and in commenting on their remarks I return to some of the points made at the outset by my hon. Friend the Member for Newark. The sponsors of the Bill have never treated this as a sacrosanct Measure. We accept that it has imperfections, perhaps glaring ones. We are private Members who have attempted to do something important. We do not have the legislative resources of Parliamentary draftsmen behind us; we have had to do the best we can with the valuable assistance of experienced people outside.
I wish particularly to mention—my hon. Friend the Member for Newark has asked me to do this, because of an oversight on his part—the valuable assistance which we have received from the Married Women's Association. I could read a list of other bodies, crossing political parties and religious beliefs, which support the Bill. I repeat that no sponsor of the Bill has attempted to say that the Measure is sacrosanct. We are trying to get across to the House a principle, and we want hon. Members to give that principle a Second Reading. After that, in Committee, we can sort out many of the problems that hon. Members have raised.
I pay tribute to my hon. Friend the Member for Newark not only for his choice of Measure, but for his skill in presenting it to the house and for his tenacity of purpose, for this little Bill is of vital importance. It has attracted a great deal of publicity. We have been grateful for this and perhaps we should thank the Government for it. Although, on its merits, we consider that it would be right for us to press the matter to a

Division, even if we had come to a contrary conclusion, in view of the action of the Government earlier this week, we would, though we would perhaps have been in a difficult position, still have wished to press the matter to a Division.
The hon. and learned Member for Buckinghamshire, South expressed opposition to both the Bill and its principle, although he was clearly not violently opposed to the principle. He said that adequate provision existed in the courts at present. That has been disputed by hon. Members on both sides and I hotly dispute it. No woman believes that there is adequate provision in the courts today.
No woman thinks that the services she renders to the household and the things which she has helped to buy, not perhaps by going out to work, but often by budgeting the family accounts, are adequately provided for in the courts. The hon. Gentleman put forward a very masculine argument. I do not accept that the law is so comprehensive. If it is so adequate and comprehensive, why have the Government and both sides of the House entrusted the Law Commissioners with revising the law? There must be something wrong with it when the Law Commissioners are sitting so long to improve and amend it.
My hon. Friend the Member for Pontypool (Mr. Abse), in an excellent speech, put a number of highly pertinent questions to the Solicitor-General. He stressed that the Bill is ambitious. We make no excuse for saying that this is an ambitious Bill. It is a revolutionary Bill. It seeks to revolutionise the status of married women. That is the whole object of it. This is not some icing on the cake for married women. It goes to the root of marriage to benefit the wife.
My hon. Friend the Member for Pontypool put four questions to my hon. and learned Friend the Solicitor-General. He indicated that if he answered them satisfactorily he might well consider that my hon. and learned Friend was right. My hon. and learned Friend did not answer them satisfactorily. Let us consider what he said about the Law Commission. It is treating this matter with urgency. He said that a report on the maintenance provisions of the law with regard to matrimonial affairs may be in the hands of the Government in July


this year, but that the Commission's Report on the other matters which it is considering, particularly matrimonial property, would not be out until later—possibly the end of this year or next year.
Therefore, let us look at this matter from a practical point of view. We are getting on for the middle of this Session of Parliament. Clearly, there can be no proposals relating to this Bill from the Law Commission before next September or October. Therefore, a Bill on matrimonial property could not be introduced by the Government next Session. It is conceivable that, if the Law Commission is quick enough, a Bill will be introduced in the Session after that. But that will be 1970. That Session will open in the autumn of 1970 and will end in March of that year. Therefore, Parliament will not be able to deal with this matter unless hon. Members vote in favour of giving a Second Reading to this Bill.

Mr. Abse: My hon. Friend will remember that the proposals for financial relief could, if there is sufficient steam in the House, include a number of important matters relating to property. It is clear from what the Solicitor-General said that we could have a Bill dealing with them next Session.

Mr. Oakes: Yes, if they were included, but I did not hear my hon. and learned Friend say that the Government would introduce any of those proposals next Session. It was put to him clearly by my hon. Friend the Member for Pontypool and he replied after my hon. Friend, but he did not say that the Government were prepared to introduce those proposals next Session. That was one of the things that the sponsors of the Bill were listening for keenly.
I come to the argument about whether it is proper for this House, and for a private Member of the House, to introduce the Bill while the Law Commission is considering the matter. Clearly, it is. We are the legislative assembly. We are the people who should decide on legislation and what is necessary. Even if the Law Commission is examining the matter, it is up to us as a House to decide whether we will put forward our proposals and not have to wait for those of the Commission.

We would be right, therefore, in saying that today we give a Second Reading to the Bill to consider its proposals, let alone the proposals that the Law Commission may have on this matter, even though the proposals of the Commission, as indicated by my hon. and learned Friend the Solicitor-General, appear to be going quite close towards the proposals of the sponsors of the Bill concerning matrimonial property.
It was significant when my hon. and learned Friend the Solicitor-General spoke that he, too, is clearly in sympathy with the proposals of the Bill. My noble Friend the Lord Chancellor is in sympathy with them. It was significant that a previous Law Officer of the Crown, the right hon. and learned Member for Chertsey (Sir L. Heald), also was in sympathy with the proposals of the Bill—again, the choking with cream, to which I referred earlier.

Mr. Ronald Bell: Since my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) is not here, I ought to intervene to say that he said he was in sympathy with the general intentions of the movers of the Bill. He certainly was not in sympathy with the proposals of the Bill.

Mr. Oakes: I accept that. If I use the word "proposals", I mean the general intention of the Bill. The right hon. and learned Gentleman made it clear that he did not support the provisions of the Bill.
Two hon. Ladies have spoken in the debate and, significantly, both of them are in favour of the Bill. We are, therefore, getting support directly in favour of the Bill. We have this support from people who are in sympathy with the objects of the sponsors and we have support from people who are in sympathy with the objects of and with the Bill itself. Very few hon. Members who have spoken are not in sympathy with the intentions of the sponsors of the Bill. So where are we? What is the position of the House?
The Bill which is before us has its defects. None of the sponsors would argue that there are not defects, and considerable defects, in the drafting. We say, however, that if hon. Members support the principles and the intentions behind the Bill, if they are dissatisfied


with the legal position of married women today, they should give us our Bill. Let us take the Bill upstairs and discuss it in Committee on an all-party basis. Let us listen carefully to the Law Officers of the Crown on the Government's proposals and where they think we are wrong.
I go further and ask the Law Officers who are in favour of the intention behind the Bill to help us also with the drafting of the Bill. Let them do that, as it will have to be done when the Law Commission reports, on the problems, which at present they find insoluble, of the effects of the Bill on conveyancing, succession, estate duty and all these things. When the Law Commission reports, a lot of legislative time will have to be occupied on its proposals.
We as sponsors of the Bill are asking for that time now. Let us, in this Session of Parliament, consider these matters and have the advice of the Law Officers on them in Committee upstairs. If the House is broadly in sympathy with and in favour of the intention of the Bill, let us not say we will not have the Bill at all because of drafting difficulties; let us not say that we reject the whole Bill because every jot and tittle of it is not right.
In what my hon. and learned Friend the Solicitor-General said there was a complete dichotomy. He said, first, that the Government considered that the Bill was not properly amendable. Then he went on to say that one of the difficulties about the Bill is that the Long Title is so wide that it would admit of many Amendments. My hon. and learned Friend has to make up his mind. Either the Bill is not amendable at all, as he said originally, or it is too amendable. If it is amendable, let us have Amendments.
There are many Amendments which we could make—for example, with regard to pensions, as well as actual property. We might spend a lot of time on this in Committee. We have spent a lot of time on the Divorce Reform Bill, and we have rightly spent a lot of time on the Divorce Bill both last Session and this.
Another significant fact is that a supporter of the Divorce Reform Bill, my hon. Friend the Member for Pontypool,

and the proposer of the Divorce Reform Bill last year, my hon. Friend the Member for Coventry, South (Mr. William Wilson), have both spoken in favour of this Bill. There is no conflict between this Bill and the Divorce Reform Bill. I am very glad that my hon. Friend the Member for Pontypool made that so very clear. What a lot of us consider is that there is a great deal of provision complementary between that Bill and this Bill, even if it is only psychological compensation to those people who consider—

Mr. Abse: Speaking rather as a lawyer than a Member of the House, I certainly did not say I was in favour of this Bill. I said that I was in favour of the principle of the Bill, and I will act upon that.

Mr. Oakes: I hope that my hon. Friend, being in favour of the principle of the Bill, will come into the Lobby to give the Bill a Second Reading, and I hope that he then becomes a member of the Standing Committee on the Bill so that he can give us his valuable insight into how he would amend the Bill in the light of his own Bill. It would be an experience that we would find invaluable.
My hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) was sympathetic towards the Bill, but picked a lot of holes in it. I agree that holes can be picked in it. He raised an argument we have heard outside, but which I did not myself hear from my hon. and learned Friend the Solicitor-General, that if the Bill were passed the courts would not be able to cope. I want to deal with that argument from two points of view.
First, it is not proper for us, as the Legislature, to say that we would pass legislation which would bring greater justice to the women of this country, but we cannot have that legislation because our machinery of justice is inadequate. That is not a proper argument at all.
On the facts of the numbers of cases which would go before the judge, it has rather been assumed that every divorce suit will be a defended suit, and that every time a divorce petition is presented there will be a dispute between the parties who will argue hotly before the court. Clearly, this will not be so. The parties, and the solicitors of the parties, will, in


the vast majority of instances, agree on what the value of the matrimonial property is, and they will submit their agreed version to the judge, and, if the judge finds that the agreed person is in order, the judge will approve the settlement. That is the sort of thing which is likely to happen.
So I would dispel completely the idea that the courts of justice of the land will be burdened with excessive delays because of claims over the value of knives and forks given as wedding presents. That is highly unlikely to happen, and it is very unfair to suggest that that may be a possible result of the Bill.
My hon. and learned Friend the Member for Northampton (Mr. Paget) dealt with wages disclosures. It is an abominable thing for a husband not to disclose to his wife what his wages are; she is the person who has to run the household. As Members of Parliament, our wives and everyone else know our income; r o one can be in any doubt. If a husband does not tell his wife what he earns he must have something to hide. If the Bill requires such disclosure for his own benefit as well as for his wife's, that is an added advantage, apart from what the sponsors want to do on the division of matrimonial property.
My hon. Friend the Member for Stockport, North (Mr. Gregory) and my hon. Friend the Member for Coventry, South dealt very well indeed with the principle of the social status of women, which is what this Second Reading debate is about.

It was quite clear from what was said by the hon. Member for Runcorn that he is wholly behind the intentions of sponsors of the Bill. He has considered the position of those people with a little house and a little car, and they will be the vast majority of people affected. He lucidly referred to many objections to the Bill and made the point made by no other hon. Member, that the Bill does not seek whole hog community of matrimonial property. The Bill has been criticised for doing this, and it has been criticised for not doing so, but we are not seeking to do so.

On the point raised by my hon. Friend the Member for West Stirlingshire (Mr. W. Baxter) we have taken advice and gather that the Bill cannot apply to Scotland. The system of justice in Scotland is, in most respects, far superior to ours and I ask hon. Members representing Scottish constituencies to be generous enough to let England take the lead on matrimonial property, since they lead us in so many aspects of the law.

The sponsors of the Bill, which has been so highly controversial, will divide the House upon it. We ask the House to give the Bill a Second Reading, and we undertake to look sympathetically and favourably at amendments made in Committee. Let us do justice to the married women.

Question put, That the Bill be now read a Second time:—

The House divided: Ayes, 86, Noes, 32.

Division No. 50.]
AYES
[4.0 p.m.


Abse, Leo
Fletcher, Raymond (Ilkeston)
Lee, Rt. Hn. Jennie (Cannock)


Alison, Michael (Barkston Ash)
Fraser, Rt. Hn. Hugh (St'fford &amp; Stone)
Lestor, Miss Joan


Anderson, Donald
Freeson, Reginald
Lewis, Arthur (W. Ham, N.)


Atkins, Ronald (Preston, N.)
Gardner, Tony
Luard, Evan


Atkinson, Norman (Tottenham)
Gregory, Arnold
Lubbock, Eric


Awdry, Daniel
Griffiths, Rt. Hn. James (Llanelly)
Macdonald, A. H.


Baker, Kenneth (Acton)
Gunter, Rt. Hn. R. J.
Maddan, Martin


Barnes, Michael
Heffer, Eric S.
Marquand, David


Baxter, William
Hooley, Frank
Mendelson, John


Bidwell, Sydney
Hordern, Peter
Mikardo, Ian


Blenkinsop, Arthur
Houghton, Rt. Hn. Douglas
Mitchell, R. C. (S'th'pton, Test)


Brown, Sir Edward (Bath)
Howie, W.
Molloy, William


Butler, Mrs. Joyce (Wood Green)
Hughes, Emrys (Ayrshire, S)
Moonman, Eric


Campbell, Gordon (Moray &amp; Nairn)
Hunt, John
Morris, Alfred (Wythenshawe)


Conlan, Bernard
Iremonger, T. L.
Murray, Albert


Dean, Paul
Jackson, Peter M. (High Peak)
Neave, Airey


de Freitas, Rt. Hn. Sir Geoffrey
Jenkins, Hugh (Putney)
Norwood, Christopher


Dewar, Donald
Jennings, J. C. (Burton)
Oakes, Gordon


Dickens, James
Jones, T. Alec (Rhondda, West)
Pannen, Rt. Hn. Charles


Driberg, Tom
Kerr, Russell (Feltham)
Pardoe, John


Dunwoody, Dr. John (F'th &amp; C'b'e)
Kirk, Peter
Parker, John (Dagenham)


Edwards, Robert (Bilston)
Knight, Mrs. Jill
Parkyn, Brian (Bedford)


Evans, Gwynfor (C'marthen)
Lane, David
Roebuck, Roy




Ryan, John
Wainwright, Richard (Colne Valley)
Williams, Alan Lee (Hornchurch)


Shaw, Arnold (Ilford, S.)
Weatherill, Bernard
Wilson, William (Coventry, S.)


Sheldon, Robert
Wellbeloved, James
Winnick, David


Thorpe, Rt. Hn. Jeremy
Wells, William (Walsall, N.)



Urwin, T. W.
Whitaker, Ben
TELLERS FOR THE AYES:


van Straubenzee, W. R.
Wilkins, W. A.
Mr. E. S. Bishop and


Vickers, Dame Joan
Willey, Rt. Hn. Frederick
Mr. Albert Booth.




NOES


Bossom, Sir Clive
Hill, J. E. B.
Percival, Ian


Campbell, B. (Oldham, W.)
Hogg, Rt. Hn. Quintin
Rawlinson, Rt. Hn. Sir Peter


Channon, H. P. G.
Irvine, Sir Arthur (Edge Hill)
Rees-Davies, W. R.


Davidson, Arthur (Accrington)
Jones, Rt. Hn. Sir Elwyn (W. Ham, S.)
Renton, Rt. Hn. Sir David


Davies, Dr. Ernest (Stretford)
Lever, Harold (Cheetham)
Reynolds, Rt. Hn. G. W.


Diamond, Rt. Hn. John
Longden, Gilbert
Taverne, Dick


Drayson, G. B.
Loughlin, Charles
Taylor, Sir Charles (Eastbourne)


Errington, Sir Eric
Lyon, Alexander W. (York)
Worsley, Marcus


Fraser, John (Norwood)
MacDermot, Niall



Glover, Sir Douglas
Macmillan, Maurice (Farnham)
TELLERS FOR THE NOES:


Goodhew, Victor
Marsh, Rt. Hn. Richard
Mr. Ronald Bell and


Grieve, Percy
Peart, Rt. Hn. Fred
Mr. R. T. Paget.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

NURSERY SCHOOLS (PARENTAL CONTRIBUTIONS) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

WORKMEN'S COMPENSATION AND BENEFIT (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 7th February.

DISABLEMENT COMMISSION BILL

Order for Second Reading read.

Hon. Members: Object.

Mr. Gordon Campbell: On a point of order. I did not hear any voice saying "Object" to that Bill, unless it was because of noise from the Government Front Bench.

Mr. Speaker: Order. The Chair heard it. It is not necessary for the hon. Member to hear.

Second Reading deferred till Friday, 28th March.

LIVE HARE COURSING (ABOLITION) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

BRITISH STANDARD TIME ACT (REPEAL) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

INDUSTRIAL INFORMATION BILL

Order read for resuming adjourned debate on Second Reading [13th December].

Hon. Members: Object.

Debate further adjourned till Friday, 25th April.

TATTOOING OF MINORS BILL

Read a Second time

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

PEDESTRIAN CROSSINGS, UPPER TULSE HILL

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ernest G, Perry.]

4.8 p.m.

Mr. John Fraser: Hundreds, if not thousands, of my constituents have a grievance about the inadequacy of the pedestrian crossing facilities in Upper Tulse Hill, S.W.2. They have looked in the past to their local authority, Lambeth Borough Council, for a remedy to this grievance. Despite the sympathy and active help of the council, its members and officers, they have not been able to get a remedy.
They have also looked to the Royal Society for the Prevention of Accidents, the Greater London Council and to the Commissioner of Police, but they are still without a remedy for what is a longstanding need for pedestrian crossing facilities in this area. The only hope they now have is to get some remedy from my hon. Friend.
Whilst it is not accepted so far by either the Ministry of Transport or by the Metropolitan Police that there is a need for better crossing facilities, it is agreed by practically everybody else who has anything to do with it that there is a need for these facilities because there is a total absence of crossing facilities in this area.
Upper Tulse Hill is an unclassified road, 12 to 15 yards wide, which runs for about two-thirds of a mile from the A.23, the very busy and congested Brighton Road, to the A.204 at Tulse Hill, which is also a reasonably busy road, and joins up shortly afterwards at its junction with Upper Tulse Hill, with the South Circular Road.
In Upper Tulse Hill there are no traffic lights except at the termination of the road, which is a very convenient short cut for people wanting to get out of a congested traffic artery. When traffic attempts to get out of a congested traffic artery it does so with spurts and speed and this causes danger in the area. At peak hours the traffic flow its about 261 vehicles an hour at the maximum. I have observed that the flow may be even greater than that since the last count was taken in 1967. There is a bunching of

vehicles which proceed at speed and constitute a danger.
The danger is worsened by a number of factors. First, and perhaps most important, is the fact that there are three schools in Upper Tulse Hill. Two are immediately opposite each other. One known as Holmwood School is in the constituency of Streatham and the other is Holy Trinity. In the latter there are about 360 pupils and in the former 190. Also at Upper Tulse Hill there is a school of which I am a governor, Tulse Hill Comprehensive School, which has at least 1,800 pupils. Since the children go to and leave school at the same times, there is a considerable crossing to and fro by pupils and the parents taking younger children.
The second reason why the danger is worsened is that this is a road which, despite its frequent use as a short cut between two main arteries, has no parking restrictions. Its effective width is very much reduced because there is often parking of cars for great lengths on both sides of the road. I went along the road this morning to view the conditions. I found outside the entrances to two schools a line of parked cars on one side of the road and a line on the other and also a heavy lorry double-banked, leaving a small space for a heavy traffic flow to get through. At the same time I observed a group of 12 parents and children trying to cross the road. Parking exacerbates the danger.
There is also an old people's home on this road and the road is bordered by many residential areas particularly by a large number of council estates, some of which have been recently completed. These factors make any figures which have been given hitherto not entirely reliable. Probably the flow of traffic and pedestrians has increased since the last census was taken. The danger is also exacerbated by the fact that there are many junctions with other roads. People in this area apprehend danger from traffic and ask for better crossing facilities.
I suggest that these could be provided by three kinds of crossing. There could be an uncontrolled zebra crossing to provide a defined area where people could cross safely. The second facility would be better and more effective parking restrictions which would provide areas


of visibility and make it easier to cross. There is a need for restriction of parking near schools and road junctions. When the children are going to school in the morning and going home at night they have to weave their way through parked cars and this constitutes a hazard for both drivers and pedestrians.
The third facility I suggest is a controlled supervised crossing at the point where there are two infant schools and a great deal of flow of pedestrians between the two. Interviewing some of the families I have found that some have children at both these schools and there is much crossing between them. Mercifully there have not been many accidents. This is due to the conscientiousness of the local police in safety training and the care and attention of parents and the staffs of the schools. But I hope that it will not be used as an argument against me that there have not been many accidents. People will not accept that one has to wait until there has been a tragedy before better facilities are provided. In my experience, it tragically happens far too often that it is hindsight after a tragedy rather than foresight which leads to better arrangements for pedestrians.
Neither my constituents nor I are prepared to accept the argument that the provision of, say, a zebra crossing should be determined solely by figures of pedestrian flow and the mathematical formula at present used by the Ministry of Transport. In our view, one cannot decide whether an accident is likely to take place purely upon a mathematical formula. Other factors must be taken into account as well—the age of the children, visibility, the amount of parking, the number of turnings, the speed of vehicles, and other tests which must be of a subjective nature.
I do not accept a mathematical formula for determining whether there should be a crossing because I consider that a community has the right to have a say in the provision of its own amenities. There is plenty of evidence that there is a determination to this end in the local community. There have been letters from individuals. There have been approaches by the Royal Society for the Prevention of Accidents to secure better facilities. There have been petitions signed by many hundreds of people, there have

been requests by our own borough council, and there have been suggestions from councillors and others individually interested. There is plenty of evidence of the demand for better facilities, and I have seen and heard it frequently in talking to parents and to people on the doorstep. I ask, therefore, that the views of the community be taken into consideration. Since 1961, it has been urged upon the appropriate authorities that better facilities should be provided.
I ask the Minister to use partly his power of decision and partly his power of influence over people such as the Commissioner of Police for the Metropolis, who, I understand, has to make the final decision about having a supervised school crossing. I ask the Minister to do three things. First, will he approve a zebra crossing at one point in Upper Tulse Hill which will provide a defined and safe area where people generally, not just children, may cross the road safely? I accept that an uncontrolled zebra crossing does not always afford the safest method for children to cross a road because it can sometimes lead them into a false sense of security. But there are many people to be considered, and a point somewhere away from the school might be a good place for an unsupervised zebra crossing.
Secondly, I ask the Minister to use his influence to secure the establishment of a controlled and supervised crossing at the point of the two infant schools. One could hardly think of a better place for a supervised crossing for limited periods during the day when the children are coming to and going from school. The need cries out and seems obvious. I ask my hon. Friend to use his influence to secure that facility.
Finally, I ask the Minister to investigate the efficacy of parking restrictions as a greater aid to road safety, as a greater aid to visibility and as a method of reducing the hazards to which both children and adults are at present subject.
To ask for these things to be done is in the interests of almost 2,500 school children who go to school down this road, and they are requested by the considered opinion of many thousands of parents and residents. The situation calls for action. These people have already waited too long. I hope that my hon. Friend will give us a good answer today.

4.19 p.m.

The Joint Parliamentary Secretary to the Ministry of Transport (Mr. Neil Carmichael): May I say, first, that I fully understand the interest which my hon. Friend the Member for Norwood (Mr. John Fraser) has shown today in this aspect of road safety in his constituency, The safety of pedestrians, whether adults or children, is, indeed, a matter of the utmost importance and is a subject which we at the Ministry of Transport treat very seriously.
However, before I deal with my hon. Friend's particular point about the need for pedestrian facilities in Upper Tulse Hill, I think that it would help if I outlined the background leading to our current thinking on the overall number of pedestrian crossings which should be provided and where they should be situated.
When pedestrian crossings were first introduced, many years ago, highway authorities were free to install as many as they wished. Their initial success encouraged a steady increase in their numbers, often at most unsuitable sites, and as their numbers increased, so did drivers' respect for them diminish. This eventually reached the stage where the lack of observance by drivers was presenting a serious and dangerous problem.
In 1951, the Government of the day therefore decided that the only answer was a drastic reduction in numbers, with everything possible being done to ensure full observance of those that remained. Although the initiative for proposing sites was left to the local authorities, the final approval and authorisation of the crossings was put under the central control of the Ministry.
It was, incidentally, at this time that me zebra striping was introduced. This policy proved very successful and laid the foundations for the situation we have today, where pedestrian crossings are generally well observed and treated with respect by the great majority of drivers.
To bring this about certain general conditions were laid down which needed to be fulfilled before the Ministry would authorise a crossing. One of these was that the number of pedestrians should be sufficient to ensure that the crossing was in fairly constant use throughout the day. Another was that there should be sufficient

distance between the crossing site and any other crossing or traffic light signals.
It was also emphasised that crossings should not be provided specifically for the use of children or elderly people at sites where the normal pedestrian and traffic volumes were otherwise insufficient. Such crossings, we had learned from experience, would only tend to give these people a false sense of security. By applying these criteria it has been possible to ensure that crossings have been installed in appropriate places and their numbers kept to a reasonable level.
This is not to say that these criteria are immutable. They are kept under review to take account of constantly-changing traffic conditions. My hon. Friend will no doubt recall that early in 1967 we modified and relaxed the existing conditions so that sites could be accepted if they were in general use at peak traffic periods instead of throughout the day. It was estimated that this would produce an increase of about 20 per cent. in the total number of zebra crossings in England and Wales.
More recently we announced that in the light of experience greater responsibility would be given to local authorities for siting pedestrian crossings on their own roads. The Ministry would, nevertheless, retain an overall interest in numbers and would apply a "quota" system broadly based on the population of the town or district.
I must, however, make it clear that this delegation of responsibility does not yet apply in the Greater London area, although provision for this delegation to the Greater London Council is being made in the Transport (London) Bill at present before the House. For the time being, therefore, the responsibility for authorising pedestrian crossings in London rests with the Ministry, although the initiative for proposing sites is normally a matter for the local authority.
With this background, I should now like to turn to my hon. Friend's specific point about pedestrian crossing facilities in Upper Tulse Hill. This is an unclassified road for which the Borough of Lambeth is the highway authority. It is about three quarters of a mile long, with an average carriageway width of about 25 feet and with footpaths on both sides. There is no pedestrian crossing anywhere along its length, although the


borough has requested on a number of occasions that one should be provided. Unfortunately, detailed investigation has always shown that there were insufficient grounds to justify a crossing.
The first site originally proposed some years ago was near the junction of Upper Tulse Hill and High Trees. The borough considered that a crossing was justified, because of the considerable movement of pedestrians between the adjoining housing estates, shops and schools. This proposal was very carefully considered in the light of accident reports for the preceding period, and counts were taken of the volumes of pedestrians and vehicles.
In addition, the customary consultations were undertaken with the police. I should like to say at this point how much we value the assistance of the police in these matters. Their intimate knowledge of the site and their advice is invariably most helpful. While the mathematical formula is a guide, local opinion and, particularly, local police opinion—which is probably more reliable than most local opinion on traffic matters—is also taken into account, as are many other factors.
At this particular site, both the police and the Ministry agreed that a crossing could not be justified. In the first place, the site was less than 100 yards away from the junction of Tulse Hill and Upper Tulse Hill, where traffic signals—with a pedestrian phase—are provided. Further, although there was certainly an appreciable pedestrian movement, the volume of traffic was such that there were sufficient gaps for pedestrians to cross safely.
Nothing further has been heard of the proposed crossing at High Trees since 1964, and it is assumed that the borough accepted the Ministery's view.
The next and most recent request for a crossing was put forward by the borough in September, 1967. This related to a site near the junction of Upper Tulse Hill and Claverdale Road. Particular reference was made to the need for the crossing to cater for children attending Holmewood Infants' School and Holy Trinity Primary School. My hon. Friend wrote in support of this application following a petition which he had received from local parents.
This fresh proposal was again most carefully examined. Traffic and pedestrian counts were available and an accident report was obtained. The views of the police and the Greater London Council, which is the traffic authority, were sought. The numbers of vehicles and pedestrians as indicated by the traffic count were not sufficient to meet even the latest relaxed criteria.
The accident record showed that there had been one pedestrian injury only in the preceding six months when an elderly lady was slightly hurt. A site inspection by a Ministry engineer showed that road conditions were in no way exceptional. There was good visibility in both directions and there were adequate gaps in the traffic for pedestrians to cross in safety. In the circumstances, the police, the Greater London Council and the Ministry all agreed that a crossing was not warranted.
A feature of the borough's application was the need for the crossing to cater for schoolchildren. I must emphasise most strongly the point I have already made—that uncontrolled pedestrian crossings are not the answer for young schoolchildren. Because of their immature judgment young children are liable to run on to a crossing thoughtlessly in circumstances which leave drivers little chance of avoiding them.
If the major object is to afford protection to schoolchildren then the answer is a school-crossing patrol or a "lollipop man". In London, the provision of these patrols is a matter for the Commissioner of Police. I understand that in this particular case the Commissioner did not, however, consider a crossing patrol justified.
Following the notice of my hon. Friend's Motion, up-to-date information has been sought from the authorities to see whether conditions have changed appreciably since the matter was last considered in 1967. It appears that they have not. The accident record for the whole of 1968 shows two pedestrian accidents involving children—one aged 12 and one aged 3—running out into the path of vehicles. In both cases, injury was slight.
I agree that any accident is to be deplored, but this record certainly does


not suggest that Upper Tulse Hill is exceptionally dangerous. It is also doubtful whether a pedestrian crossing would have prevented either of these two accidents. The police have, in addition, confirmed that conditions still do not justify a school-crossing patrol.
I am sorry if my reply to my hon. Friend appears to be wholly negative. I can assure him that we have no wish to be obstructive. Our aim is simply to

ensure that pedestrian crossings are installed only at suitable sites and for the correct purposes. This, we feel, after a great deal of experience and much thought, is the best way to protect the safety and interests of both the pedestrian and the motorist.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Four o'clock.